In 30 seconds…your fresh choice under the Protected Disclosures Act 2022

Fear of retaliation is one thing. The ability to walk away, to become morally disengaged or to behave as if willfully blind is another. In 30 seconds you have options. And all too often its walking away that offers the path of least resistance.

As a society , we need to make it too difficult to walk away.

As a business community, we need to encourage and support speaking up every day.

Child care workers took photographs of bruises, beatings, scaldings or whatever the shocking truth may have been – but they then walked away. Tenants experiencing mould, cold and misery took it on the chin – buttoned up and walked away.

Class A drugs at work, favouritism in procurement, failings in recruitment, emails that belittle and undermine, the unqualified issuing spurious instructions as a condition of gaining consent, codes of ethics breaches and perceptions of deceit, dishonesty and non-disclosure.

There is so much ‘walk away’ that this is a highway paved with unintentional support for perpetrators of everything from simple ethical lapses to murder.

But on 1 July, 2022 the Protected Disclosures Act will come into force. Retaliation is not tolerated and legislative pathways are identified. It’s a start. It places the public sector on notice around training and embedding new ways. It anticipates that the private sector will get a wakeup call.

From the outset, following the initial targeted consultation by the Ministry of Business, Innovation and Employment (MBIE) and the Public Service Commission (PSC) it was noted that ‘legislative reform needed to be supported by longer-term changes in organisational culture’.

Submitters had identified that it was critical to shift organisational cultures and behaviours so that speaking up was valued and employees could do so ‘freely and without fear’.

Changing organisational culture so that 30 seconds is spent on decisive action rather than walking away requires ethical leadership. But can we rely on it? And, how do we know it exists?

Looking around it would seem a lot has to change. We know that internal speak up processes alone are, more often than not, unpalatable. External speak up agencies such as Report it Now an independent and global ethical reporting service are attuned to changes in legislation that land with impact but culture lag take time and commitment. Craig McFarlane, director, Report it Now confirms that culture change and leadership that actively encourages speaking up is nearly always hit and miss.

“We have known for years that the Protected Disclosures Act much like the EU Whistleblowing Directive would require more of company culture and leadership. Being prepared to implement culture change and front foot a fresh appraisal of speak up processes is rarely high on a Board agenda. This leads to low prioritisation by the CEO or senior leadership team. Usually things change for the better only when there is a media outcry and major reputational damage follows – the media being the first option when safer channels aren’t provided.”

Few companies enable definitive conversations or workshops that build insight and understanding into why people remain silent and the way that culture needs to change. Put simply, the barriers faced by those hoping to speak up are not overcome when the speak up policy is drafted by legal teams and gets signed at a Board level with nothing further undertaken.

Recall the NZX Corporate Governance Code’s Principle 1 Code of Ethical Behaviour and internal speak up which identifies ‘regular training’ as being a recommendation that companies need to report against. Few do. And, surprisingly, this omission goes unnoticed.

And yet, without regular training that builds insight and supports longer-term changes in organisational culture it impossible to see how speaking up could become top of mind.

A big part of the reform revolves around processes that prevent retaliation and protections for whistleblowers. The Privacy Act 2020, the Human Rights Act 1993 and the Employment Relations Act 2000 are all cited. Specifically the Employment Relations Act 2000 will be revised so that if retaliation or threats of retaliation occur a personal grievance can be lodged.

By coincidence, one of the early 2018 submitters made contact this week. They thought their victim impact statement, written in the wake of their decision to speak up, might be worth a read. It was. Worth noting, and worthy of celebration, is the fact that this persons courage in speaking up led to a multi-million dollar fraud being uncovered.

But, instead of acknowledgement, the level of retaliation, from people across all levels of society, were pedigree pit bull wanting bone.

This persons finances were decapitated. Their personal, family, social and professional circumstance were butchered. To date, there has been no effective recompense and much like any other victim of violent attack they have had to relearn the essence of trust while rebuilding their reputation and career.

Their story puts everything into perspective. It underlines why the old Act had to be updated.

As a society , we need to make it too difficult to walk away.

As a business community, we need to encourage and support speaking up every day.

The Protected Disclosures Act 2022 is designed to improve the experience of those who speak up. It enables more channels for reporting. It provides more protections mainly through increasing the responsibilies of any receiver.

Without however significant and sincere culture change, including speak up workshops being embedded, it will still come down to the initial 30 seconds.

And in 30 seconds even you could walk away.