Christa Ludlow, Principal Consultant of Weir Consulting, discusses whether one should speak out against misconduct in the workplace, particularly when one’s job is at risk. Sadly, doing the “right thing” and speaking up can have repercussions: History is full of whistleblowers who were prosecuted, stigmatised as mentally ill, isolated, bullied, and sacked, she writes.
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Christa will present on the topic, Managing Difficult Colleagues or Bosses, at the CPD Compulsory Units for all Lawyers Conference on Tuesday, 12 March.
SHOULD I SPEAK UP?
For some time I have been suspicious about one of the senior executives where I work. The business leaves him alone because he’s popular with important clients. Now I have seen some paperwork which suggests that he has falsified some documents and is overcharging clients. He’s also a bully. Should I tell someone? I don’t want to lose my job, but he shouldn’t be allowed to do this.
It sounds as if the company has failed to monitor this executive’s performance and may not be thrilled to find out that he has committed misconduct. You want to do the right thing – good for you. But there are some things to consider.
Firstly, does your employer have policies on reporting misconduct which you can rely on? Does it have a “speak up” culture which encourages people to report this sort of behaviour?
Businesses should provide avenues and support for their employees to speak up about misconduct without the risk of recriminations and victimisation. This is an important part of risk management and good corporate governance. They should investigate complaints of bullying, too, as it is a recognised risk to workplace health and safety and could expose them to workers compensation claims or proceedings in the Fair Work Commission.
However some businesses have a “shoot the messenger” approach. Even if your employer does have a policy which encourages you to report misconduct confidentially or anonymously, your information may not be welcomed by those in charge at first.
At this point you are not sure about your suspicions and there may be alternative explanations for what you have seen. Consider whether there is someone more senior in your workplace whom you trust to hear your concerns and possibly explain them. If they are concerned as well, and decide it should be reported, this will provide some security for you. Following your employer’s own procedures may provide some protection for you under the general protections provisions in the Fair Work Act 2009.
You could provide information to the company without putting your name to it. But anonymous complaints aren’t always taken seriously.
In the news recently we have seen people who have taken a stand and spoken up about bullying, about illegal banking practices, and sexual harassment. But sadly, there can be repercussions for speaking up. History is full of whistleblowers who were prosecuted, stigmatised as mentally ill, isolated, bullied, and sacked. Even if no one tries to victimise you, the subsequent investigations, and fallout can create stress and even trauma.
If your employer is a corporation, and you have no other avenues, you could make a confidential disclosure as a “whistleblower” to the company’s auditor, a company officer or senior manager, a person that the company has authorised to receive whistleblower disclosures, or to the Australian Securities and Investments Commission (ASIC). If you make a disclosure as a whistleblower, you are entitled to some protection from reprisals, as long as you have reasonable grounds to suspect that the executive may have breached the Corporations Act 2001 or the Australian Securities and Investments Commission Act 2001, and you have acted in good faith. This could be difficult to determine, and ASIC suggests you obtain legal advice first if you aren’t sure about this. Obviously it’s a serious step to take. Most employers would prefer a report is made to them rather than an external party.
If you do decide to speak up, make sure you are prepared. Collate your evidence and do some research about what kind of misconduct you suspect. Document what you have observed with dates.
You may benefit from someone else’s perspective on what is going on. Tell your immediate family what you are planning to do. You may need other support as well if the allegations are serious. A lawyer can provide impartial advice and will treat your information confidentially. A counsellor or psychologist can help you cope with the emotional impact and stress that may arise.
Try to get an undertaking about how your disclosure will be handled before you speak up. Identify any allies in the company who will support a call for transparency and integrity, and who you can call on for help. If you think that you will be victimised for speaking out, think about planning your exit and other employment opportunities in advance (but be aware that ASIC’s whistleblower protections are only available to you if you are employed by the company).
Ultimately the choice is up to you. What you are considering doing takes courage, but without courageous people who speak up, nothing will ever change.
Christa Ludlow is a lawyer with over 20 years’ experience in employment law and administrative law, and a qualified coach and mediator. She is a Principal Consultant with WEIR Consulting. WEIR provides workplace conflict resolution, investigation, coaching and training services to clients in the public and private sectors. Contact Christa at christa.ludlow@weirconsult.com.au.
