Revenge: a dish best served cold

Revenge and retaliation are on the same spectrum.

From the 18th Century Les Liaisons Dangereuses through to The Godfather or StarTrek II: The Wrath of Khan the notion that delaying revenge and ensuring it is carefully planned and executed—so as to maximise harm—is well documented.

Granted, the proverb, in dissuading one from heat-of-the-moment reactions, probably didn’t start with thoughts of retaliatory actions against whistle-blowers as a top-of-mind consideration.

Nonetheless, for the malevolent and malicious, it provides direction against which seriously targeted anti-retaliation measures are needed.

Too often repercussions from a whistleblowing event will continue to impact long after the investigation closes or resolution is reached. Through an array of stealthy behaviours—such as long-term exclusion from important decision-making committees,  promotions, appointments, training opportunities or bonus payments—the thought of such ‘cold dishes’ can deter whistle-blowers. The consequences are simply unpalatable.

Preventing and warding off planned, premeditated and carefully exacted retaliation is the focus of a recent publication titled ‘Making Australian Whistleblowing Laws Work – Draft Design Principles for a Whistleblower Protection Agency’. It’s a worthwhile read for anyone concerned with ‘next steps’ to improve whistleblowing engagement and outcomes.

The principles were jointly developed by Transparency International Australia, Human Rights Law Centre and Centre for Governance and Public Policy, Griffith University with input from distinguished experts who offered direct experience in all aspects of whistleblowing. They included former senior public servants, whistleblowing hotline providers, expert practitioners from private law firms, and Transparency International Australia corporate members, including representatives from mining, finance and professional services.

Of these, one quote stands out. It comes from Dennis Gentilin, former banking fraud whistle-blower who states: “Even with the best legislation, there will be organisations where people don’t feel comfortable using internal channels and that’s what the whistle-blower protection commissioner/authority will do. It will provide them an avenue.”

That avenue is also possible if a company has an external reporting service that stands, independently,  between the employee and the employer. Such an entity is Report It Now®.

Case Management software EthicsPro® captures all interactions related to any submission/report and enables anonymity if the submitter/reporter wishes. EthicsPro® allows secure communications between the reporter/submitter and works with clients to develop an internal Ethics Committee with diverse members. Most importantly Report It Now® archives all interactions thereby ensuring any whiff of retaliation that crops up years later can be traced back to the original incident.

According to Craig McFarlane, founder and director Report It Now®  “Most of our clients’ relationships are long-term, so a case that may have been investigated and resolved over two or three years ago is easy to bring up so that retaliatory intentions left to stew before being enacted can be assessed against the easily accessible background that we record”.

New Zealanders need only think across Pike River, the leaky buildings crisis, Ross Asset Management or Stephen Versalko, the ASB Bank fraudster, to remember on how much harm could have been prevented had a whistleblower been encouraged to come forward—and their fears of retaliation negated.

The Australian Draft Design Principles sets out a detailed proposal for how a dedicated, independent agency or office can actually enforce these vital protections, and make the systems work.

It is no different in New Zealand, but the appetite and cohesion amongst groups with a vested interest in enabling whistleblowing and effectively supporting whistle-blowers is yet to develop.

Having said that, during the 2021/22 consultation phase for New Zealand’s updated Protected Disclosures (Protection of Whistleblowers) Act, several consultees, notably the Chief Ombudsman, Ministry of Justice and the Serious Fraud Office, considered that the proposed changes could have gone further in reinforcing the intent of the Act. Specifically, faster progress was urged in relation to establishing a one-stop-shop, improving redress, monitoring and reporting.

In New Zealand, the latest iteration of the Act specifies that retaliation for making a protected disclosure will be prohibited. To assist in identifying retaliation a specific list of retaliatory behaviours is provided. Subjecting the discloser to any disadvantage that would affect their job performance or job satisfaction is rejected. How this would be assessed is not made clear and, no doubt, the bar would be set extremely high.

This ‘grey area’ of proof is what strengthens the case presented by the Australian researchers, who see the role of a Whistleblower Protection Authority as focusing on remedial action in response to prima facie cases of detrimental treatment of whistleblowers. A key driver is affirming and scaling up the established principle that whistleblowers should be left ‘no worse off’.

Quietly missing the mark in terms of leading the drive for better protection for whistleblowers are those very entities that should embody good risk management, governance and leadership.

Stronger protection for whistleblowers provides protection for investments and stakeholders everywhere. Agriculture, for example, benefits from early invention and prosecution of those dumping toxic waste. Each and every sector benefits from gathering insights about harassment, bullying etc that might be undermining not just employee well-being but also recruitment and retention initiatives.

Equally, proponents of ESG, shareholders, professional membership bodies, NGO’s and charitable entities all have a vested interest in recognising the value that whistleblowing contributes to performance. Their silence or lack of engagement is symptomatic of the battle for whistleblower support that remains misunderstood.

The cold dish of retaliation or revenge is best confined to novels and fiction. But without cohesive principles and widespread awareness of the practical need to monitor and dissuade retaliatory action, the translation from what we read to what is done will continue to be on the menu.

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