Internal reporting & the role of the investigator: Proactive - - PDF document

Internal reporting & the role of the investigator National Investigations Symposium, 8‐9 November 2012 1

Internal reporting & the role of the investigator: Proactive management to minimise risk

Chris Wheeler, NSW Deputy Ombudsman National Investigations Symposium, 8‐9 Nov 2012

Thank you for the opportunity to speak at this morning’s session on effective whistleblowing

• management. Today I will focus on the role that the investigator plays when an internal report
• f wrongdoing is made, and outline a number of strategies that investigators can employ to

proactively manage the many players involved and minimise the risk of a negative outcome. These strategies draw on the experience of the Ombudsman’s office as an investigating authority under the NSW whistleblower legislation since 1995. Relatively recent amendments to what is now called Public Interest Disclosures Act 1994 (PID Act) gave us an oversight role in relation to the legislation. We established a specialised Public Interest Disclosures (PID) Unit to take the lead in this role. The first annual report on the operation of the PID Act will be available on our website early next month. Despite being the subject of numerous Parliamentary Joint Committee inquiries,

• ne of the long-standing challenges with evaluating the PID Act in NSW has been the lack of

information about its implementation. Our annual report outlines what we now know based on the information provided to our office by public and investigating authorities about the PIDs they have received. It also provides relevant results from the Public Service Commission’s survey of state government employees and information about the PID Unit’s work during their first 12 months of operation. For example, the PID Unit trained over 6,000 public sector employees and managers, released 32 publications (many of them twice), and distributed 17 PID e-News bulletins. Yet none of this material – as well as the bulk of my presentation today – contains the word ‘whistleblowing’. Our office’s reframed guidelines now comprise a series of 21 practice notes and talk instead about ‘internal reporting’. This format also allows is to update our guidance quickly and easily, both to reflect any developments in our thinking as well as any legislative changes. The neutrality of this term is in strong contrast to the connotations often provoked when one talks about whistleblowing – be they negative (e.g. traitor/troublemaker)

• r positive (e.g. hero/martyr). It also reflects our office’s philosophy: that speaking up against

public interest wrongdoing should simply be an everyday, ordinary part of the duty of public

• fficials.

Investigators have a crucial role to play in building such a culture. When studies have asked staff why they didn’t report wrongdoing, most answered that this was because they didn’t think appropriate action would be taken in response. Demonstrating that appropriate and robust action is taken to investigate allegations of wrongdoing can instil confidence in staff and reassure them that reports of wrongdoing will be adequately dealt with. Internal reporters are also more likely to be satisfied with an investigation outcome that is not in line with their expectations, if they perceive the process to have been fair and impartial.

Internal reporting & the role of the investigator National Investigations Symposium, 8‐9 November 2012 2

Things can – and often do – go wrong

A key purpose of PID type legislation can be seen as establishing fair and reasonable ground rules for each of the parties to the disclosure that aim to minimise the chance of things going wrong. For example:

• the reporter must provide a certain level of information about certain categories of

conduct in a certain way to certain people

• no one, including any subjects of the disclosure, can take detrimental action

substantially in reprisal for the making of a PID (referred to as ‘reprisal’)

• those who receive, assess or deal with disclosures must do so in accordance with

their agency’s procedures, and

• the Principal Officer must ensure their agency takes certain action.

Based on these ground rules, agencies are encouraged to promote – and to enforce – their own rules in their internal reporting policy and supporting procedures. In this regard, one of our PID guidelines outlines the responsibilities of all the parties who may be involved:

• staff generally
• staff reporting wrongdoing
• staff who are the subject of a report
• support people
• managers and supervisors
• staff who can receive a report (e.g. PID Officers/PID Coordinator/ Principal Officer)
• staff assessing a report (e.g. PID Coordinator)
• the PID Coordinator specifically
• the PID Manager (for principal departments), and
• the Principal Officer.1

Another example is contained in our Managing Unreasonable Complainant Conduct model policy.2 Even with such statutory and policy frameworks in place, investigators need to realise that people don’t always do the right thing or play by the rules. Internal reports can lead to a number of poor outcomes:

• Workplace conflict: Internal reports are often accompanied by or result in conflict or

an otherwise difficult workplace situation. The various parties to the report each have their own agenda, and often do not act or react rationally. The facts and circumstances surrounding both the original wrongdoing and the reporting itself can raise particularly strong emotional reactions. In a highly charged environment, this is an explosive mix.

• Long-term adverse consequences: Despite the best efforts of agencies, few ‘staff on

staff’ complaints are resolved to the satisfaction of all parties. They can have a devastating effect on co-workers and work teams.

Internal reporting & the role of the investigator National Investigations Symposium, 8‐9 November 2012 3

• Injustice/unfairness: Staff with responsibility for receiving, assessing or dealing with

reports may not want to take action in relation to internal reports – instead, brushing them under the carpet or attempting to forget they were made. This has been attributed to both their loyalty towards their organisation and the fear of harm to their reputation.

• Endlessly pursuing substantiation/vindication: If a report is not substantiated, it

was well known that it was made, and it concerned people with more power or support within the organisation, the internal reporter is likely to become ‘fair game’ for a range

• f negative repercussions. It is this realisation that probably drives the high priority

many reporters place on substantiation itself as a means of protection. In many cases, vindication is the obsessive driving force behind the reporter’s continued involvement with the agency.

• Unreasonable ‘reporter’ conduct: Disaffected internal reporters often demonstrate

unreasonable behaviours. However, because of the nature of their rights as employees, accepted unreasonable complainant conduct strategies may be of limited utility.

• Litigation: This can be, and often is, initiated by all parties. However, a recent study
• f litigation in the US suggested that whistleblowers have a tendency to appeal and

have lengthy court battles.3

• Reduced efficiency and productivity: If an internal report is not handled properly

within an agency, it can become a nightmare that never goes away.

• Negative public image/reputation: A failure by management to take action on an

internal report may result in more distrust and less confidence in management. In turn, this could cause damage to the reputation of the agency and threaten its legitimacy.

Minimising risk through proactive management

Reactive management is the ‘head in the sand’, ‘hope for the best’, ‘don’t admit we have a disclosure’ approach – staff only react after reprisal has occurred. There have been cases in NSW where the courts found against agencies that adopted a reactive or more ‘hands-off’ approach to the protection and/or welfare of their staff.4 For example, in the Wheadon case, the NSW District Court found that the State of NSW was liable for the Police Service’s breaches of its duty of care to the officer in many ways, including by failing to:

• properly investigate the internal reporter’s allegations
• properly investigate allegations made about the internal reporter, and
• provide a proactive system of protection, and proactive support and guidance.

As investigators, there are a number of proactive management strategies, processes and activities that you can draw on beyond those that I will talk about today. They either aim to:

• identify, pre-empt and prevent potentially damaging incidents, or
• respond and mitigate their impact when prevention fails.

Investigators can minimise the risk of a poor outcome by taking control of the situation, and adopting a systematic and considered approach to the management of the investigation. An effective problem-solving process is fundamental – where you actively look out for problems

Internal reporting & the role of the investigator National Investigations Symposium, 8‐9 November 2012 4

in an effort to identify them early on and develop plans to address them, even when all seems to be running smoothly.

Understand your role: To investigate

The role and responsibilities of an investigator should be clearly defined in advance of any

• investigation. They should be careful to avoid accepting responsibility for matters that should

in practice be the responsibility of others – to preserve a realistic role and set of expectations for themselves. Generally, it’s important for all parties to know who is responsible for each stage and aspect of the internal reporting process and what they’re not responsible for. Annexure 1 contains an example, although each agency’s model will differ to reflect the structure and needs of that organisation. Investigation and support type functions in particular should be clearly separated to ensure their independence. If possible, the investigator should not be the PID Coordinator or one of the nominated PID Officers. The PID Coordinator or Officers can then be responsible for providing any necessary support to the internal reporter, as well as giving them regular updates on the investigation. This will avoid any perception of bias that may arise from the investigator communicating directly with the internal reporter, other than to obtain relevant evidence. The challenge lies in small organisations, where the same employee might be the PID Coordinator and investigator. While it is appropriate for grievances or minor complaints to be dealt with at the local level by managers, this will rarely be the case in the investigation of a serious matter in the public interest (i.e. the types of allegations that can be the subject matter

• f a PID). In universities, for example, we have often seen faculties conduct investigations

about their own staff members based on allegations raised by other faculty staff. Regardless

• f how such investigations are managed, this is fertile ground for perceptions of partiality

which can result in either the reporter or the subject of the report being unable to accept that the outcome was fair and reasonable. The more independent the investigator is from the workplace, the better. Small agencies with

• nly one person with PID responsibilities should ensure their agency’s policy emphasises the

importance of conducting an investigation at arm’s length from the particular workplace and staff involved. For example, agencies could consider alternatives for either investigating or providing support such as:

• appointing staff unrelated to the investigation (for example, in another work unit) to

provide any necessary support to the internal reporter (and any person the subject of the report), as well as giving them information and updates on the investigation

• using external investigators or appointing a person external to the agency to provide

support.

Be realistic and discriminating: Motivations

Internal reporters might be motivated by very personal factors that at their core have little or nothing to do with the best interests of their agency or the general public. Experience and much research have shown that a lot of reporters raise matters in which they are personally and/or directly involved. These circumstances include where:

Internal reporting & the role of the investigator National Investigations Symposium, 8‐9 November 2012 5

• they were involved to one degree or another in the alleged misconduct (and had a

change of heart, were motivated to disclose by malice, are attempting to avoid disciplinary action, etc)

• the alleged misconduct directly impacted on them in a way they consider to be unfair
• r detrimental
• they became aware of the misconduct because it impacted on the performance of their

duties. Annexure 2 sets out a typology of possible motivations for reporting wrongdoing that highlights the wide range of motivations that may be in play. Motivations are not always clear, and a reporter may have more than one. The NSW Protected Disclosures Act used to refer to issues about whether the ‘motivation’ of an internal reporter was frivolous or vexatious (this is generally not a ‘content’ issue because in nearly all jurisdictions the scope of such legislation is limited to serious matters). The amended PID Act still refers to disclosures motivated by the object of avoiding disciplinary

• action. Leaving aside the overwhelming practical difficulty of determining a person’s motive,

it is important to recognise the difference between disclosures that might be ‘vexatious’ and those that might be ‘malicious’. In this context:

• vexatious is where the motive of the person is to cause harm, and there is no substance

to the disclosure or it is actually false

• malicious is where the motive of the person is to cause harm, but there is substance to

the disclosure (e.g. triggered by recent break-up). From the perspective of the agencies and the investigating authorities that receive disclosures, while ‘vexatious’ is always bad, ‘malicious’ may well be good. That said, malice does diminish the credibility of the internal reporter’s evidence and means that other more reliable evidence needs to be found to substantiate the allegations. The investigator’s perceptions of the validity and accuracy of information reported should not be influenced by their perception as to the motive of the reporter. At the same time, it’s important to remember that often the perspective of the reporter is not objective either – they may be directly involved or have another personal interest. Investigators need to focus on content, while remaining aware of credibility issues that could alert them to possible avenues

• f investigation or intelligence.

Manage expectations from the outset

Reporters often come to our office (as they do to other investigating authorities and to agencies themselves) with certain expectations about how their report should be dealt with, when, by whom, and the likely outcome. Internal reporter expectations must be managed from the outset to attempt to ensure that they are not unrealistic or unachievable. If an internal reporter develops expectations that are too high, dissatisfaction invariably results with the way in which their matter is handled, the manner in which the investigation is conducted, or the outcome of any investigation or other action. High expectations are understandably reinforced by official efforts to encourage internal reporting. In the internal reporting context, research indicates that managing the expectations of employees is clearly as important to ensuring good outcomes as controlling the risk of

Internal reporting & the role of the investigator National Investigations Symposium, 8‐9 November 2012 6

reprisals (discussed later). In many cases, vindication plays a decisive role in many internal reporters’ perceptions of the overall outcome of their report. If the investigation outcome does not lead to vindication or other positive action, there is a high likelihood that the reporter will have a negative attitude to those involved, management and the agency itself. Investigators should check to ensure that an appropriate person has asked the reporter to

• utline their expectations of what should happen to their report and what the outcome should
• be. If these expectations seem unrealistic, the reasons for this view should have been fully and

clearly explained to the reporter up front. This message can then be reinforced with the internal reporter by the PID Coordinator and investigator at various times during the course of any investigation. The investigator should explain their role, and the powers and process they intend to follow in relation to the report. This will help to avoid any perceptions of bias or

• partiality. Agencies need to reassure internal reporters that they have done the right thing and

that the allegations made will be dealt with accordingly.

Communicate about the investigation

Good management involves regular contact with the reporter because it serves as a feedback and support mechanism. Where they only have limited information about what is happening, the parties involved will tend to make assumptions. If people don’t know what ‘government’ is doing about an issue, the standard default position is to assume that nothing is happening, that whatever is being done is highly ineffective or in some other way ‘wrong’, or that there is a ‘cover-up’. Taken together, a highly emotional situation with limited information often leads reporters and subjects to act inappropriately or even irrationally. While they should generally not be the primary person responsible for ongoing communication with the reporter, it’s important for the investigator to tell the reporter that the

• bjective of the investigation is to give fair and impartial consideration to their allegations. If

their capacity to investigate or take action is restricted by legal limitations or an absence of enforceable powers, these should be fully explained. It is important to provide the internal reporter with regular and accurate updates throughout the investigation of the matter. Even if there is no new information, it is still important to maintain regular contact because it assures the internal reporter that they have not been forgotten. At the conclusion of any action taken by the agency, it is vital that reporters are given sufficient information to demonstrate that the matters alleged in their report have been dealt with fairly and appropriately – particularly where they have not been substantiated. All too

• ften our attention is drawn to cases where clearly insufficient information has been given to

the reporter about the outcome, generally because the dissatisfied reporter brings their concerns to us. A particularly troubling reason we are sometimes given by agencies to justify why they declined to give reporters details of the action taken, is that it would be a breach of the privacy of the subject of the report. Section 4(e) of the Privacy and Personal Information Protection Act 1998 makes clear that information about an individual contained in a PID or that has been collected in the course of an investigation arising out of a PID is not personal information for the purposes of that Act.

Internal reporting & the role of the investigator National Investigations Symposium, 8‐9 November 2012 7

Even where the results of the investigation have been provided in detail to the reporter, in my experience it is not uncommon that the information is drafted from the perspective of agency, with little thought given to the perspective of the reporter. For example, the outcome might be described in terms of the allegations not being substantiated without, where appropriate, an explanation being given to the reporter as to what this means in practice. It may well be, for example, that the finding was not that the allegations were wrong, only that insufficient evidence could be found to prove they were true to the relevant standard. It is also an

• pportunity to tell the reporter if their information led to the agency identifying systemic

problems or other process improvements.

Monitor confidentiality

The issue of confidentiality for internal reporters is a particularly vexed question. A long held view has been that the best form of protection for a reporter is confidentiality. This is often the first thing internal reporters themselves will ask about. The reason is obvious: if no one knows you reported, you cannot suffer reprisals. The NSW PID Act requires agencies to keep confidential information that might identify or tend to identify an internal reporter, although a number of exemptions apply. Where it is practical and appropriate, it is certainly best practice that confidentiality be maintained by the agency and all staff aware of the report. In such circumstances investigators should talk to internal reporters about the most appropriate and discreet way of contacting them – for example, whether to contact them at work or if it’s ok to leave the reporter a message. In practice, agencies may not be able to realistically guarantee confidentiality:

• to ensure procedural fairness, anyone who is the subject of allegations should be given

an opportunity to answer them

• once it is known that an internal report has been made, it is often not difficult to

surmise who made it – and the agency may not be aware that certain information is sufficient to identify the reporter

• sometimes the internal reporter makes confidentiality even more difficult because they

have previously voiced their concerns about an issue or their intention to report, or ‘out’ themselves as the author of the report. There was a case in NSW involving a police officer where the defendant was able to demonstrate that the identity of the internal reporter had not been disclosed by the Police Force or its investigators. On this basis, it could not be proven that the detrimental action he took against the internal reporter was substantially in reprisal for the making of an internal disclosure. We recommend a risk assessment approach be adopted by agencies. When a report is received, there needs to be a conversation with the reporter to find out whether they have previously raised their concerns in the workplace, whether they have told anybody about their intention to report, or whether for any other reason their involvement will be deduced once the fact the report has been made becomes known in the workplace. Investigators must know the outcome of this assessment up front: what the likelihood and consequences are of the identity of the internal reporter being disclosed or remaining confidential, and actively monitor any changes.

Internal reporting & the role of the investigator National Investigations Symposium, 8‐9 November 2012 8

Our experience suggests that proactive management action is often the only practical option available where confidentiality is not a realistic or appropriate option (which in practice turns

• ut to be the situation in most cases). Based on the level of risk, consideration must then be

given to the steps that should be taken to ensure the internal reporter is sufficiently supported and protected from reprisal. Where it is decided to try to maintain confidentiality, if in the course of the investigation it becomes operationally essential to disclose the identifying information, approval should be sought from the Principal Officer or the PID Coordinator with the relevant authority before doing so. The reporter should also be given advance notice to prepare themselves.

Monitor the risk of reprisal

Internal reports are often the result of workplace conflicts that have led to a total and irreparable breakdown in workplace relationships. Rather than waiting for the completion of an investigation, agencies need to identify and assess the risk of reprisals and ‘related sources

• f workplace conflict or difficulties’, the level of protection and support that should be

provided in response, and the strategies that should be implemented by management to address the ongoing workplace conflict.5 The PID Coordinator or PID Officer should undertake such an assessment, at least so far as it concerns the reporter, as soon as a report of wrongdoing is made internally. The investigator’s job is to monitor the risk level and to report back to management if action is required. When it comes to harm to employees, both good management practice and workplace health and safety legislation dictates that the threshold of acceptable risk should be low. Individual

• fficers are now liable and face significant penalties for failing to keep their workplace safe –

which includes preventing victimisation, bullying and harassment. Any decisions on how to address the risk should be made in consultation with the internal reporter and the details will

• f course depend on the individual circumstances of the case. Strategies might include:
• verifying the organisational position or work performance of the reporter as soon as

possible after a report is made to provide a benchmark against which any management action subsequently instituted for alleged poor performance can be assessed

• appointing a support person who can be involved in helping the internal reporter

manage their own responses to risk

• reinforcing with the subject or other employees that the reporter has acted in

accordance with the law and agency policy, and warning them that the taking of reprisal action is a disciplinary and a criminal offence, or

• changing the reporter’s supervisor or moving them to another area temporarily.

Management strategies for workplace conflict are a separate issue beyond the scope of the paper, but further advice is provided in one of our PID guidelines.6

Reprisal: no easy answers?

The strategies and approaches outlined above are generally effective when used appropriately. Yet sometimes there are simply no obvious or right solutions. The management of reporting is more an art than a science – there is no simple formula or set of rules that will work every time, or possibly even most of the time.

Internal reporting & the role of the investigator National Investigations Symposium, 8‐9 November 2012 9

This is particularly the case when allegations of reprisal are made. One scenario is when staff attempt to make a PID either to avoid an upcoming performance review or in an attempt to prevent the usual performance management cycle. Action against the interests of a reporter in and of itself is not detrimental action that would be in breach of the Act – it is only if the detrimental action is taken substantially in reprisal for the making of a PID. However, the reverse onus of proof for this offence places responsibility squarely on the defendant to prove to the required evidentiary standard that any such action was not taken in reprisal. For example, agencies must be able to show that any performance management action taken against a reporter was in fact justified in the circumstances. In reality, given the unfortunately all too common failings in record-keeping, it is difficult for agencies, or individual managers, to conclusively prove that the reason they did A was because of B and not because of C. If complete and accurate records have been kept, the agency should be able to show that any future action was initiated and in train before the report was made.

Openly admit and rectify mistakes

It’s somewhat inevitable, then, that things sometimes go wrong. Our experience suggests that when they do, the best approach is to communicate with those affected, including openly admitting mistakes. In one such matter we knew about, there had been a breach of confidentiality – the inadvertent provision of information to the subject of the allegations that identified the reporter, as well as certain private information about the reporter. To retrieve such a situation, in our view, agencies should:

• Inform the internal reporter immediately of the inadvertent disclosure and the actions

taken in consequence of the disclosure.

• Apologise. A full apology – one that includes an admission or acceptance of fault or

responsibility – needs to address each of the issues listed in our Public Sector Agencies Factsheet: Apologies.7

• Maintain confidentiality henceforth.
• Remind the subject of the disclosure that it is unacceptable to take detrimental action

in reprisal for the disclosure (including that it would be a disciplinary and criminal

• ffence), and that the situation will be closely monitored to ensure inappropriate action

is not taken.

• Consider the need for further practical action to prevent reprisal, for example,

changing seating arrangements, changing supervisory arrangements, or moving the reporter or the subject to another work location (any detrimental impact on their career is a factor that must be taken into account before initiating such action).

• Review why the mistake happened and how it can be prevented in future.
• Document all decisions and actions on file.

By being proactive as soon as a mistake has been made, the agency or official responsible for the problem has at least a fighting chance to achieve a satisfactory outcome and maintain a positive relationship with the internal reporter.

Internal reporting & the role of the investigator National Investigations Symposium, 8‐9 November 2012 10

Conclusion

The only real solution at the end of the day is to change the culture of the public sector as a whole and of each individual agency within it – so that reporting is simply an ordinary part of everyday working life in the public sector. Agencies should view each internal report of wrongdoing as an opportunity to find out how they are functioning. Rather than being seen as ‘dobbing in your mates’, reporting should be seen as the norm – something that provokes cultural and moral ambivalence. It should be the expectation of the management and staff of every agency that employees are obliged to report wrongdoing of which they become aware. Our office will assist the development of this culture by ensuring we have the right legislative framework in place and continuing to provide training, advice and guidance to agency management and to raise the awareness of public officials. Most importantly, we will work with public sector agencies to implement the intention of the PID Act by building a positive reporting culture where staff feel encouraged to speak up, are confident in doing so when they see something wrong and believe it will result in appropriate action. This requires:

• Commitment: Executive and senior management need to visibly demonstrate their
• wn personal commitment to the program.
• Knowledge: Raising the awareness of staff by providing training about what should

be reported, how to do so and to whom – and most importantly, why reporting is important and simply their duty as a public official.

• Capacity: Ensuring the right skills – such as managers being able to identify PIDs,

coordinators assessing them correctly, and adequate investigative capacity being available.

• Systems: A formal internal reporting policy supported by procedures and processes

that work effectively and efficiently.

• Integration: Internal reporting being seen as merely one part of a suite of integrity

systems that legitimise ethical discussion and conduct. Speaking now to attendees from NSW, take advantage of our role under the PID Act to provide advice, guidance and training on the effective management of internal reports – after all, it is free! Please contact our PID Unit or visit our table outside during one of your breaks.

Internal reporting & the role of the investigator National Investigations Symposium, 8‐9 November 2012 11

Annexure 1. Internal reporting roles and responsibilities

Principal Officer Relevant manager PID Coordinator PID Officer Investigator Support person Receipt and assessment Receive report (verbal or written)

• Assess whether report is a PID
• Acknowledge PID
• Assess what action to take
• Assess likelihood of confidentiality
• Assess risk of reprisal
• Develop protection/support plan
• Management of parties

Ongoing communication

• Link parties to support
• Provide parties directly with support
• Monitor risks (confidentiality/

reprisal)

• Review protection/support plan
• Decline/No further action

Notify reporter of outcome

• Preliminary enquiries

Make enquiries

• Analyse information
• Issue findings and any

recommendations

• Make decisions on findings and any

recommendations

• Notify reporter of outcome
• Implement any recommendations
• Monitor implementation of any

recommendations

• Formal investigation

Draft terms of reference

• Approve terms of reference
• Develop investigation plan
• Gather/analyse evidence
• Draft preliminary findings and any

recommendations

• Provide procedural fairness
• Issue report of findings and any

recommendations

• Make decisions on findings and any

recommendations

• Notify reporter of outcome
• Implement any recommendations
• Monitor implementation of any

recommendations

Internal reporting & the role of the investigator National Investigations Symposium, 8‐9 November 2012 12

Annexure 2. Typology of motivations for reporting wrongdoing

Public interest

motivations

1. Affronted ethical/moral standards (by misconduct or incompetence) 2. Frustration (at lack of action in response to concerns previously raised about misconduct or incompetence) 3. Principle (seen as the right and proper thing to do) 4. Obligations under law (e.g. mandatory reporting of child abuse and principal officer reports to the ICAC of suspected corrupt conduct) 5. Obligations under agency policy (e.g. in a code of conduct or an internal reporting policy) 6. Disagreement with government policy (in relation to the implications of a policy or failings in its implementation – usually made to the media or non‐government MPs)

Misguided

motivations

7. Judgement issues (due to inability to properly judge the relevance or significance of information, events, conduct or relationships) 8. Psychological or personality issues (e.g. obsession, delusion, paranoia, attention seeking)

Private interest

motivations

9. Vindication (in response to a failure to respond to or substantiate concerns previously raised about misconduct or incompetence)

• 10. Personal interests (in response to perceived or actual disadvantage in

the workplace, missed opportunities, injustice, unfairness, harassment, detrimental action in reprisal for reporting, etc)

• 11. Guilt or remorse (by people previously involved or implicated in

misconduct or incompetence)

• 12. Confession to avoid penalty (by people involved in misconduct or

incompetence)

• 13. Malice (e.g. arising out of interpersonal conflict, office politics,

ambition, enmity, revenge/payback, etc)

• 14. Minimising responsibility or blame (by drawing attention to the

involvement of others in misconduct or incompetence)

• 15. Avoidance of disciplinary action (e.g. by discrediting potential witnesses
• r to be able to argue or to set up a defence that any subsequent

disciplinary action alleging misconduct or incompetence in reprisal)

In relation to the motivations listed in the typology above, it is important to note:

• private interest motivations can produce disclosures that are very much in the public

interest

• private interest and misguided motivations are more likely than others to result in

selectivity in, and/or questionable accuracy or interpretations of, reported information

• the motivations listed at 4, 6, 12 and 15 are excluded from protection under the NSW

Public Interest Disclosures Act 1994

• personal matters that can be addressed through a standard internal grievance process

are not included as they are unlikely to produce reports that are in the public interest.

Endnotes

Internal reporting & the role of the investigator National Investigations Symposium, 8‐9 November 2012 13

1 NSW Ombudsman, 2011, PID guideline E2: Roles and responsibilities. 2 Managing unreasonable complainant conduct: A model policy and procedures (NSW Ombudsman, 2012)

lists the rights and responsibilities that must be observed and respected by all of the parties to ensure that all complaints are dealt with fairly, efficiently and effectively and that occupational health and safety standards and duty of care obligations are adhered to.

3 Katz, M, LaVen, H & Lopez, YP, 2012, ‘Whistleblowing in organizations: implications from litigation. SAM

Advanced Management Journal, v.77 (no.3), p.30.

4 E.g. Wheadon v State of New South Wales, No 7322 of 1998, 2 Feb 2001, District Court; State of NSW v

Coffey [2002] NSW CA 361, 28 Oct 2002; Bankstown Foundry Pty Ltd, Braistina (1986) 160 CLR 301.

5 Further advice can be found in PID guideline C4: Managing risk of reprisals and conflict (NSW

Ombudsman, 2011).

6 NSW Ombudsman, 2011, PID guideline D4: Preventing and containing reprisals and conflict. 7 Section 5C of the NSW Civil Liability Act 2002 provides that the information conveyed in a full apology is,

in most circumstances, not admissible in civil proceedings. Similar provisions exist in the Australian Capital Territory’s Civil Law (Wrongs) Act 2002 and in Queensland’s Civil Liability Act 2003.