Protected Disclosures Policy

Purpose

This Policy outlines the procedures to be followed in relation to protected disclosures under the terms of the Protected Disclosures (Protection of Whistleblowers) Act 2022 (the Act).

Organisational scope

This Policy applies to any person at the University who is (or was formerly):

• An employee;
• A secondee;
• A contractor;
• A member(s) of the University Council, or any other governing body; and
• A volunteer

Definitions

Act

Refers to the Protected Disclosures (Protection of Whistleblowers) Act 2022.

Appropriate authority

Has the meaning given in section 25 of the Act and includes the head of every public sector organisation, the membership body of a particular profession, trade, or calling with the power to discipline its members, any of the persons or bodies listed in Schedule 2 of the Act, and the University council. For completeness, an appropriate authority does not include Ministers of the Crown or members of Parliament.

Corrupt

Refers to the abuse of entrusted power for private gain (eg soliciting or receiving gifts or other gratuities to perform part of an official function, or omit to perform an official duty). It includes dishonest activity in which a manager, staff member or contractor of the University acts contrary to the interests of the University and abuses their position of trust in order to achieve some personal gain or advantage for him or herself or for another person or entity.

Discloser

Means in relation to the University, an individual who is (or was formerly):

• An employee;
• A secondee;
• A contractor;
• A member of the Council or any other governing body and
• Any volunteer.

Fraudulent activity

Is an intentional and dishonest act involving deception or misrepresentation, to obtain or potentially obtain an advantage for themselves or any other person.  It includes the deliberate falsification, concealment, destruction or use of falsified documentation used or intended for use for a normal business purpose of the University or the improper use of information or position whether or not for personal benefit.

Information

Refers to information about serious wrongdoing in or by the University that a Discloser believes, on reasonable grounds, is true or is likely to be true.

Natural justice

Refers to the right to procedural fairness.

Protected disclosure

Means a disclosure where the person:

• Believes on reasonable grounds that there is, or has been, serious wrongdoing in or by the University;
• Discloses information in accordance with the Act or this Policy (which summarises the Act); and
• Does not make the disclosure in bad faith.

Retaliate

(In relation to an employee) means doing any of the following:

• Dismissing an employee;
• Refusing or omitting to offer or afford to an employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available to other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances;
• Subjecting the employee to any detriment or disadvantage (including any detrimental or disadvantageous effect on the employee’s employment, job performance, or job satisfaction) in circum‐ stances in which other employees employed by the employer in work of that description are not or would not be subjected to such detriment or disadvantage: (iv) retiring the employee, or requiring or causing the employee to retire or resign.

Serious Wrongdoing

Has the meaning given in section 10 of the Act to include any act, omission, or course of conduct in (or by) the University that constitutes one or more of the following:

• An act, omission, or course of conduct that constitutes an offence; or
• A serious risk to public health, public safety, or the health or safety of any individual or the environment; or
• A serious risk to the maintenance of law, including the prevention, investigation and detection of offences or the right to a fair trial; or
• An unlawful, corrupt, or irregular use of public funds or public resources; or
• An act, omission, or course of conduct by a person performing (or purporting to perform) a function or duty or exercising (or purporting to exercise) a power on behalf of a public sector organisation or the Government, that is oppressive, improperly discriminatory, or grossly negligent, or that constitutes gross mismanagement.

University

Means the University of Otago and includes all subsidiaries.

Content

1. Introduction

1. The purpose of this policy is to promote the public interest:
   • by facilitating the disclosure and timely investigation of matters of serious wrongdoing in or by the University, and
   • by protecting people who disclose in accordance with the Act (hereon referred to as a Discloser).
2. The Act requires organisations such as the University to have internal procedures for receiving and dealing with information about serious wrongdoing in or by the organisation.
3. The Act also provides that the identity of a Discloser and the contents of any protected disclosure (as well as any other person who discloses information in support of or relating to a protected disclosure), will remain confidential and will not be disclosed to any other person without prior consultation with the Discloser, except in limited circumstances defined in the Act and considered below.
4. Civil, criminal, or disciplinary proceedings cannot be taken against a Discloser for making a protected disclosure, or against a receiver who refers one to an appropriate authority, or for referring one to an Appropriate Authority.  In addition, the Act provides that an employee who is subject to retaliation by their employer for making a protected disclosure can take personal grievance proceedings under the Employment Relations Act 2000.
5. It is unlawful to treat Disclosers, potential Disclosers, those who have encouraged Disclosers, or those who provide information in connection with a protected disclosure, less favourably than others in the same or similar circumstances.  If a Discloser is victimised in this way, the legal remedies under the anti-victimisation protections in the Human Rights Act 1993 may be available to them.

2. Policy

1. All employees and members of a governing body of the University must facilitate the disclosure and investigation of matters of serious wrongdoing in or by the University.
2. A Discloser may disclose information under these procedures if the following criteria are met:
   1. the information is about serious wrongdoing in or by the University and the Discloser believes on reasonable grounds that it is true or likely to be true;
   2. the information is disclosed in accordance with the Act and this Policy (which summarises the Act); and
   3. the disclosure is not made in bad faith.

Note: A disclosure that meets the above criteria is called a 'Protected Disclosure' under the Act.

3. Any other person who discloses any information in support of, or relating to, a protected disclosure having already been made, is also entitled to protection under the provisions of this Policy and the Act if that Discloser:
   1. discloses in accordance with this Policy; and
   2. does not disclose the information in bad faith.
4. A Discloser is entitled to the protections provided in this Policy and the Act, even if:
   1. they are mistaken and there is no serious wrongdoing; or
   2. they do not refer to this Policy or the name of the Act when making the disclosure.
5. Any person who wishes to make a protected disclosure may choose to report the matter anonymously through the independent Whistleblower hotline (0800 100 526).
6. All evidence gathered in relation to a protected disclosure must be fully preserved and protected.
7. The University will not retaliate against any employee for intending to make, or for having to make a protected disclosure.
8. The University will not treat, or threaten to treat a person less favourably than others in similar circumstances for intending to make or having made a protected disclosure, encouraging another person to make a protected disclosure, or for giving information in support of a protected disclosure.
9. Neither a Discloser who makes a protected disclosure, nor a receiver who refers the disclosure, under the Act is liable to any civil, criminal or disciplinary proceeding because of making or referring the disclosure.

3. Procedure

1. Making a disclosure
   1. Where a person to which this Policy relates becomes aware of information about serious wrongdoing, but does not report the matter anonymously through the Whistleblower hotline, they must disclose it without delay to any of the following persons at the University:
      • their manager
      • their manager’s manager;
      • any senior manager;
      • the Director, Human Resources;
      • the Risk Office;
      • the Registrar; and
      • The Vice-Chancellor

   Note: Disclosure will normally be made on a ‘one-up’ basis i.e. to the immediate line manager of the person making the disclosure, or in appropriate circumstances, to their manager’s line manager.

   2. A Discloser or potential Discloser may also approach any of the above-named persons, as well as the Whistleblower hotline, and an Appropriate Authority (including the Ombudsman) for advice, support and practical assistance, as well as to assist in assessing any risks to a Discloser in making a protected disclosure. A Discloser may instead make a protected disclosure directly to the Vice-Chancellor if they believe on reasonable grounds that a member of the Senior Leadership Team or a member of the University Council may be involved in the serious wrongdoing or has a relationship or association with an alleged wrongdoer.
   3. A Discloser who becomes aware of information about serious wrongdoing may also choose to report it to an Appropriate Authority at any time, including (without limitation) circumstances where:
      • the Discloser is of the view that reporting to an Appropriate Authority is justified due to the urgency of the matter or other exceptional circumstances, or
      • the Vice-Chancellor may be involved in the alleged serious wrongdoing, or
      • there has been no action or recommended action on the matter to which the disclosure relates within 20 working days after the date on which the disclosure was made.

Please refer to the flowchart set out in Appendix 1 for further information on making a disclosure under the Act and this Policy.

2. Receiving a disclosure
   1. If a person receives, or is approached for advice or support about, a protected disclosure and:
      • they are aware that they may have some involvement in the alleged serious wrongdoing, or
      • they have any relationship or association with an alleged wrongdoer, they must immediately advise the person to contact either the Whistleblower hotline (0800 100 526) or another person listed in clause 3(a)1. above.
   2. All protected disclosures which are not made through the Whistleblower hotline must be referred on to the Director, Human Resources immediately by the manager receiving the disclosure. The Director, Human Resources may also refer the matter to the Vice-Chancellor, in circumstances where the Director, Human Resources considers this is appropriate and following consultation with the applicable Discloser.
   3. If the receiver of a protected disclosure considers it appropriate, the receiver can also refer the disclosure to an Appropriate Authority.
   4. The applicable manager who has received the disclosure will consult with the Discloser and the intended recipient of a referral, prior to referring the protected disclosure to the intended recipient. An intended recipient may include but is not limited to the Director, Human Resources, any other person or an Appropriate Authority.
   5. A disclosure may also be referred to an appropriate person within the University as well as to an Appropriate Authority on more than one occasion, provided that the aforementioned requirements are complied with.
3. Confidentiality
   1. Any recipient of a protected disclosure, or any person approached for assistance, advice or support in making a protected disclosure, must use their best endeavours not to disclose information that might identify the Discloser who made the protected disclosure unless they have written consent from the Discloser to do so.
   2. However, the Director, Human Resources /Vice-Chancellor or any investigator appointed by the Director, Human Resources /Vice-Chancellor may disclose information that might identify the person who made the protected disclosure if they reasonably believe this is essential:
      • for the effective investigation of the allegations in the protected disclosure, or
      • to prevent serious risk to public health, public safety, the health or safety of any individual, or the environment, or
      • to comply with the principles of natural justice, or
      • if the University is subject to an investigation by a law enforcement or regulatory agency for the purpose of law enforcement.
   3. Where such information is to be disclosed for the effective investigation of the allegations in the protected disclosure, or to comply with the principles of natural justice, the Director, Human Resources /Vice-Chancellor must consult the Discloser about the intended release.
   4. However, where the Director, Human Resources /Vice-Chancellor considers it is impracticable in the circumstances to consult with a Discloser due to a serious risk to public health, public safety, the health and safety of any individual, or the environment; or to an impending investigation by a law enforcement or regulatory agency for the purposes of law enforcement as outlined in clause 3(c)ii), the requirement to consult prior to the disclosure does not apply.
   5. After releasing any identifying information for a reason described in the circumstances above, the receiver must inform the Discloser that their information has been referred and disclosed to another person.
   6. Anyone may seek information and guidance from an Ombudsman about this duty of confidentiality.
4. Action following a disclosure
   1. After the Director, Human Resources /Vice-Chancellor receives a protected disclosure under these procedures, they must give it full consideration and decide with an open mind whether or not the alleged serious wrongdoing should be investigated or whether any further action should be taken. The potential outcomes may be:
      • investigating the disclosure;
      • addressing any serious wrongdoing by acting or recommending action;
      • referring the disclosure to an Appropriate Authority;
      • deciding that no action is required.

   Note: The process of any investigation, and a decision to investigate, will depend on the nature of the alleged wrongdoing.

   2. A decision not to investigate alleged serious wrongdoing must be recorded in writing and does not prevent the University from taking further action in relation to matters raised in the protected disclosure, as appropriate.  However, the original Discloser will be consulted on any further action that may be taken, should it require further disclosure to any other person.
   3. The Director, Human Resources /Vice-Chancellor may direct another person to make preliminary inquiries or gather evidence on their behalf or perform any other work as necessary to assist them in making their decision.  If the receiver intends to do so, the Discloser will be consulted and notified of any further disclosure.
   4. The Director, Human Resources /Vice-Chancellor must also notify the Discloser within 20 working days from the date of the disclosure of their decision whether or not the alleged serious wrongdoing is to be investigated providing reasons for this decision.
   5. Where suspected fraudulent activity is identified by the Director, Human Resources /Vice-Chancellor this must be reported immediately to the University’s Office of Risk Assurance and Compliance. The Discloser will be notified that their protected disclosure will be referred to the University’s Office of Risk Assurance and Compliance prior to this occurring.
   6. If the protected disclosure is investigated, a final report detailing the outcome of the investigation and steps taken must be provided to the Director, Human Resources and the Vice-Chancellor, and held as a record by the University's Office of Risk Assurance and Compliance.

Note: Further disciplinary or legal action may be taken, as appropriate, in line with the final repor.

5. Further disclosure
   1. A Discloser may choose to disclose information about serious wrongdoing to an Appropriate Authority or an Ombudsman if they are dissatisfied with the outcome of any investigation by the University into the serious wrongdoing or any actions taken in respect of such serious wrongdoing.

Related policies, procedures and forms

• Protected Disclosures Act
• Official Information Act 1982
• Human Rights Act 1993
• Privacy Act 1993

Contact for further information

If you have any queries regarding the content of this policy or need further clarification, contact:

Director, Human Resources
Email kevin.seales@otago.ac.nz