Public interest disclosures - detrimental action

Purpose

The purpose of this Policy is to provide information about how you can make a Public Interest Disclosure.

If the Public Interest Disclosure scheme is to be effective, people must feel confident that they will be protected when they make a public interest disclosure.

Public Interest Disclosures cannot be made to WorkSafe because WorkSafe is not authorised under the Public Interest Disclosure Act 2012 (PID Act) to receive such disclosures (see further information below about how to make a Public Interest Disclosure).  However, WorkSafe does have an important role in supporting and implementing the Public Interest Disclosure regime by:

1. keeping a discloser's identity and the content of a disclosure confidential
2. supporting the welfare of disclosers including protecting them from detrimental action
3. providing education and training to staff.

Scope and objective

This Policy applies to WorkSafe's Board, Board Committees, the Executive Leadership Team (ELT), all employees and contractors (collectively referred to as 'employees').

This Policy has been developed in accordance with the PID Act.

The main objectives of the PID Act are to encourage and facilitate the making of disclosures of improper conduct or detrimental action by public bodies or officers or employees of those public bodies.

The PID Act establishes a system for investigations, as well as providing appropriate protection and confidentiality.

Policy statement

WorkSafe is committed to the aims and objectives of the Public Interest Disclosures Act 2012. WorkSafe does not tolerate improper conduct by its employees, officers, contractors and agents, including WorkSafe Agents, nor the taking of reprisals against those who come forward to disclose such conduct or those who co-operate with an investigation.

WorkSafe's corporate values are to be connected, persistent and dynamic. The supporting behaviours underpinning these values include being courageous, purposeful and resilient.  These behaviours are all relevant to encouraging and facilitating the making of disclosures.

How to make a disclosure

Disclosures made to WorkSafe about improper conduct or detrimental actions are not protected. If anyone (whether an employee or a member of the public) wishes to make a public interest disclosure about WorkSafe or an employee or officer of WorkSafe, and wish for that disclosure to be protected, they should make the disclosure to IBAC. IBAC's contact details are:

IBAC

Level 1, North Tower
459 Collins Street
Melbourne, VIC 3000

Postal address:

GPO Box 24234
Melbourne, VIC 3001

Phone: 1300 735 135

Fax: 03 8635 6444

Email: [email protected]

Website: ibac.vic.gov.au

IBAC investigations

IBAC will determine whether a disclosure is a public interest disclosure or not. If IBAC determines that a disclosure is a public interest disclosure, it must deal with the disclosure in accordance with the Independent Broad-based Anti-corruption Commission Act 2011 (IBAC Act).

If WorkSafe becomes aware of an IBAC investigation, WorkSafe must take all reasonable steps to ensure that its own work does not prejudice the IBAC investigation, it should assist in the investigation and it must keep what it knows about the investigation confidential.

Employees are encouraged to continue to raise appropriate matters at any time with their supervisors or other contact points (including RightCall) consistent with other procedures.

What is improper conduct?

Improper conduct includes:

1. corrupt conduct and/or
2. any of the following conduct by a public officer or public body in their capacity as a public officer or public body:
   • a criminal offence
   • serious professional misconduct
   • dishonest performance of public functions
   • an intentional breach or reckless breach of public trust
   • an intentional or reckless misuse of information or material acquired in the course of the performance of public functions
   • a substantial mismanagement of public resources
   • a substantial risk to the health or safety of one or more persons
   • a substantial risk to the environment.

Detrimental action - overview

The PID Act creates an offence for a person to take detrimental action against another person for making a public interest disclosure. Section 3 of the PID Act defines detrimental action as including:

1. action causing injury, loss or damage
2. intimidation or harassment, or
3. discrimination, disadvantage or adverse treatment in relation to a person's employment, career, profession, trade or business, including the taking of disciplinary action.

A person need not have actually taken the detrimental action to be found guilty of an offence - threats are enough. Inciting or permitting someone else to take detrimental action is also an offence.

The person must take or threaten the action because, or in the belief that:

1. the other person (or anyone else) has made, or intends to make, a disclosure, or
2. the other person (or anyone else) has cooperated with, or intends to cooperate with, an investigation of a disclosure.

If an employee takes detrimental action, WorkSafe may also be liable for the detrimental action.

Sometimes actions might seem to fall within the definition of 'detrimental action' but they are undertaken for other reasons.

Please note – Due to changes in the legislation, the requirement for the disclosure to be a 'substantial' reason for the detrimental action before an offence is proven has been removed. If the fact that the person has made the public interest disclosure is a reason for taking those actions against the person, even if only a minor reason, this will constitute detrimental action under the PID Act and constitute an offence.

Dealing with detrimental action

If anyone reports an incident of harassment, discrimination or adverse treatment that may amount to detrimental action, the employee who receives the report should record details of the incident and advise the person making the report of their rights to make a disclosure to IBAC.

Where the detrimental action is of a serious nature likely to amount to a criminal offence, consideration should be given to reporting the matter to the police or IBAC. In these circumstances, you should contact the General Counsel immediately for advice.

Transfer of employee

A WorkSafe employee who has made a public interest disclosure and who believes on reasonable grounds that detrimental action will be, is being or has been taken against them in reprisal for a disclosure may request a transfer of employment.

Employees can be transferred internally or to another public service body on similar terms and conditions of employment. This can only happen if the employee requests, or consents to, the transfer and the following conditions apply:

1. WorkSafe's Chief Executive has reasonable grounds to suspect that detrimental action will be, is being, or has been taken against the employee; and
2. WorkSafe's Chief Executive considers that the transfer will avoid, reduce or eliminate the risk of detrimental action; and
3. if transfer to another public service body or public entity is proposed, the head of that body consents to that transfer.

The transfer can be temporary or ongoing, and the employee's new service with a new body is regarded as continuous with their pre-transfer service.

If a person making a disclosure is implicated

The PID Act specifically provides that people are not protected from the reasonable consequences flowing from their involvement in any improper conduct or detrimental action. Where a person who makes a disclosure is implicated in misconduct, WorkSafe will handle any information it receives in accordance with the PID Act, the IBAC guidelines and these procedures. WorkSafe still has obligations to develop plans to support their welfare and has to balance this with its own processes (eg disciplinary action).

Disciplinary or other action against a person making a public interest disclosure invariably creates the perception that it is being taken in retaliation for the disclosure.

WorkSafe's Chief Executive will make the final decision as to whether disciplinary or other action will be taken against a person making a public interest disclosure. Where disciplinary or other action relates to conduct that is the subject of that person's disclosure, if WorkSafe has that information, the disciplinary or other action may only be taken after the disclosed matter has been appropriately dealt with.

In all cases where disciplinary or other action is being contemplated, WorkSafe's Chief Executive must be satisfied that it has been clearly demonstrated that:

1. the intention to proceed with disciplinary action is not causally connected to the making of the disclosure (as opposed to the content of the disclosure or other available information)
2. there are good and sufficient grounds that would fully justify action against any other person in the same circumstances, and
3. there are good and sufficient grounds that justify exercising any discretion to institute disciplinary or other action

WorkSafe will thoroughly documents the process including recording the reasons why the disciplinary or other action is being taken, and the reasons why the action is not in retribution for the making of the disclosure. The Chief Executive will ensure that WorkSafe clearly advises the person making the disclosure of the proposed action to be taken and of any mitigating factors that have been taken into account.

Welfare management

WorkSafe has various legislative and administrative obligations to support the health and wellbeing of employees, for example under occupational health and safety legislation, the Victorian Public Sector Code of Conduct and the terms and conditions of its employment arrangements.

WorkSafe will consider, on a case by case basis, whether a welfare manager should be appointed to assist a discloser, someone co-operating with an IBAC investigation, or a person who is the subject of a disclosure. WorkSafe may wish to make use of its employee assistance program to provide welfare support. The extent of support, and the type of support provided, will also depend on whether the person is an employee or a member of the public. In considering whether to appoint a welfare manager and to work out the type of support to be provided, WorkSafe will refer to the IBAC Guidelines for Public Interest Disclosure Welfare Management, January 2020.

WorkSafe recognises that employees against whom disclosures are made must also be supported during the handling and investigation of disclosures. WorkSafe will take all reasonable steps to ensure the confidentiality of the person who is the subject of the disclosure during the assessment and investigation process and to protect them from unnecessary harm.

Where investigations do not substantiate disclosures, the fact that the investigation has been carried out, the results of the investigation, and the identity of the person who is the subject of the disclosure will remain confidential.

WorkSafe will give its full support to a person who is the subject of a disclosure where the allegations contained in a disclosure are clearly wrong or unsubstantiated. If the matter has been publicly disclosed, WorkSafe's Chief Executive will consider any request by that person to issue a statement of support setting out that the allegations were clearly wrong or unsubstantiated.

Confidentiality

Disclosure of information in breach of the PID Act is a criminal offence.

WorkSafe will take all reasonable steps to protect the identity of a person making a public interest disclosure. Maintaining confidentiality is crucial in ensuring reprisals are not made against a person making a public interest disclosure.

The PID Act requires WorkSafe to keep any information it receives about an investigation, the content of a disclosure or about the identity of a person who has made a disclosure, confidential, except in certain limited circumstances. This generally means that WorkSafe will not tell a person who is the subject of a disclosure who has made the disclosure. Persons who make a disclosure must also maintain confidentiality of that disclosure.

A person who is the subject of a disclosure may never be told – if it is not determined to be a public interest disclosure or if the matter is dismissed. The confidentiality requirements in the PID Act are complex, so before disclosing any information, you should contact the General Counsel for advice.

To prevent breaches of the confidentiality requirements and to minimise the possibility of detrimental action, WorkSafe will ensure all files, whether paper or electronic, are kept securely and can only be accessed by a welfare manager (in relation to welfare matters) or a person authorised by WorkSafe's Chief Executive.

All printed material will be kept in files that are clearly marked as a public interest disclosure matter and 'Highly Protected' (in accordance with WorkSafe's Information Security Classification System), and warn of the criminal penalties that apply to any unauthorised access or divulging of information concerning a public interest disclosure. All electronic files will be given password protection or have limits on access rights and backup files will be kept. All materials relevant to an investigation, such as tapes from interviews, will also be stored securely with access only to employees authorised by the Chief Executive.

WorkSafe must not email to general or business-wide inboxes or fax documents relevant to a public interest disclosure matter and must ensure all phone calls and meetings are conducted in private.

Accountabilities and responsibilities

As noted above, this Policy applies to WorkSafe's Board, Board Committees, the Executive Leadership Team (ELT), and all employees and contractors (collectively referred to as 'employees'). All have responsibilities to cooperate with any IBAC investigation and to refrain from engaging in any detrimental action.

Policy effectiveness

The effectiveness of this policy should be periodically assessed by the policy owner and where improvement opportunities exist, make appropriate remediation plans.

Policy review and approval

This policy is reviewed at least annually by the Office of the General Counsel and the Risk Management Division to ensure its continued appropriateness.

The General Counsel and the Chief Risk Officer will approve any material amendments to the Policy.

The General Counsel and the Chief Risk Officer will also approve minor amendments to the Policy and all amendments to the Procedure (if procedure exists).