Whistleblower employee temporarily reinstated after termination

When an employee blows the whistle and raises concerns about the operations of the employer, can that same employee be subsequently terminated on the basis of their conduct in raising those allegations? In a preliminary decision in PPK v Communication & Training Service Ltd [1], the Authority has found that, in this case, it is arguable that such termination is unjustified, and ordered that the employee be temporarily reinstated. 

Summary of the Case

The Employee (PPK) had worked at a call-centre that books taxis for 12 years. The Employee raised concerns with the Employer in relation to the way work was being allocated to drivers. The Employee then sent a letter raising allegations of inappropriate and unethical practices, referencing nepotism and favouritism in the allocation of drivers. The Employee referred to themselves as a whistleblower. 

As part of the investigation into the concerns, the Employer interviewed the Employee. On the same day the interview was conducted, the Employee’s supervisory rights were removed, and the Employee was demoted. The Employee received missed calls and messages from one of the drivers referring to the Employee putting false blame on that driver.  

The Employer’s investigation found that the allocation of work was lawful and reasonable. Approximately two weeks following these conclusions, the Employee received notice of four allegations against them which were being investigated and a proposal to suspend the employee while the investigation took place. The allegations included that the Employee had allegedly: 

1. threatened to report confidential information to a competitor;  
2. requested a pay rise in exchange for “keeping quiet” about the allegation; 
3. proposed unlawful practice of directing jobs to a driver; 
4. used the employer’s systems to access information regarding driver earnings. 

The Employee was summarily dismissed 4 months later on the basis that the allegations had been substantiated and they had lost trust and confidence in PPK. The Employee challenged the dismissal, alleging that the employer was acting in retaliation for making a protected disclosure, and in remedies, the Employee sought to be reinstated. 

The employee was successful and the Authority granted interim reinstatement. [2] 

Of interest in this case was also the order of interim non-publication orders, related to the name, location and identifying details. This was ordered in part on the basis that an aspect of the claim was that there were alleged breaches of the Protected Disclosures (Protections of Whistleblowers) Act 2022, which provide confidentiality protections. This is contrary to the current approach of the employment jurisdiction that it is important for justice to be done and seen to be done, therefore it is in the public interest to have a system that is open and transparent, including the ability for cases (including details about the parties) to be publicly reported. 

Key points for an employer to consider when initiating an employment process involving a whistleblower: 

Regardless of the final outcome of this matter, this case raises some important issues: 

• When raising allegations against an employee that relate to the employee’s conduct as a whistleblower, it will be appropriate to consider as relevant, the circumstance that the employee is a whistleblower (and will therefore be entitled to protections under the Protected Disclosures (Protection of Whistleblowers) Act 2022). 
• When raising allegations against an employee for accessing information on an employer system, it may be appropriate to consider whether restricting the employee’s access to information that is considered outside the scope of their role, particularly considering the privacy obligations of employers, is a more appropriate approach than disciplinary action against the employee, particularly disciplinary action that results in termination. 
• The purpose of the Protected Disclosures (Protection of Whistleblowers) Act 2022 is to promote and facilitate the disclosure and investigation of serious wrongdoing in the workplace by protecting those who make a disclosure under the Act. As part of this, the employer must not retaliate against an employee because that employee intends to make or has made a protected disclosure. Care must therefore be taken in any subsequent disciplinary action relating directly to allegations about an employee’s conduct in making a protected disclosure. 
• Reinstatement is the primary remedy an employee can claim for an unjustified dismissal (under section 125 of the Employment Relations Act 2000). Reinstatement restores the employee to their former position or in a position no less advantageous to the employee, and must be provided for wherever practicable and reasonable, regardless of other remedies provided. 

The mishandling of disciplinary investigations and processes is not uncommon, often arising from employers not seeking legal advice before commencing these processes or making decisions. Taking proactive steps to seek advice and be guided through the process, rather than forging on and waiting until a personal grievance has been raised, can result in significant risk to the employer, with limited options for mitigation or to remedy the situation. 

For advice on managing employment relationships, including disciplinary investigations and processes, please don’t hesitate to contact our specialist employment lawyers at DTI Lawyers. You can contact us on 07 282 0174, or reception@dtilawyers.co.nz