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Conduct and Compliance Procedure – Whistleblowers
Conduct and Compliance Policy
The Victorian Government Whistleblowers' Protection Act (“the Act”) 2001, aims to encourage and facilitate the making of disclosures of improper conduct or detrimental action by public officers and public bodies. It provides protection to whistleblowers that make disclosures in accordance with the Act, and establishes a system for the matters disclosed to be investigated and for remedial action to be taken.
Monash University is a public body under the Act. Employees at Monash University and from companies in which Monash University is a majority shareholder [pdf] as well as Council members of Monash University are public officers under the Act.
Monash University implements the Act by:
This procedure does not replace existing University grievance processes. Generally activity that is primarily directed at a staff member, like harassment or bullying, are personal grievances and fall outside this procedure. Other University procedures are available to deal with such matters. This procedure should only be followed if a staff member, student or member of the public elects to make a disclosure of alleged improper conduct or detrimental action and the disclosure is in accordance with Part 2 of the Act.
Corrupt conduct means:
Detrimental action includes:
Employee: Individuals employed by Monash University or from companies in which Monash University is a majority shareholder.
Improper conduct means:
– that would, if proved, constitute a criminal offence or reasonable grounds for dismissing or dispensing with, or otherwise terminating, the services of an employee or Council member who was, or is, engaged in that conduct.
Protected disclosure means a disclosure where an individual believes on reasonable grounds, that Monash University, an employee or Council member—
Protected disclosure coordinator: The person at Monash University who has the central role in the internal reporting system under this procedure.
Protected disclosure officers: The people at Monash University listed in this procedure who assist the protected disclosure coordinator with the receipt of disclosures.
Public interest disclosure: A disclosure that the protected disclosure coordinator or Ombudsman is satisfied shows or tends to show that Monash University or an employee or Council member —
Substantial mismanagement of public resources: The Ombudsman advises that the use of the word ‘substantial’ has the effect of confining the definition to a situation in which the mismanagement is of a significant or considerable degree. Mismanagement should not be confused with ‘misuse’. Mismanagement is to manage badly or wrongly, whilst misuse is wrong or improper use. For example, to use University property for personal gain is a misuse rather than mismanagement.
Substantial risk to public health, safety or the environment: The Ombudsman advises that the use of ‘substantial’ has the effect of confining the definition to conduct that puts public health, safety or the environment at considerable or great risk. The risk is limited to public health or safety. This means the risk is not just to an individual but relates to conduct which affects, or has the potential to affect, a large class or group of the wider community.
Whistleblower: Any person internal or external to the University who makes a disclosure of alleged improper conduct or detrimental action by the University or an employee or Council member under the Whistleblowers Protection Act 2001.
1. Making a disclosure
Any member of the public, student or staff member can make a disclosure of alleging improper conduct or detrimental action by Monash University or an employee or Council member to any employee or Council member of Monash University. A person contemplating making a disclosure should refer to Related Documents for the Checklist for Whistleblowers at Monash University.
A protected disclosure officer, employee or Council member who receives a disclosure, will refer all correspondence, phone calls and emails from internal or external whistleblowers to the protected disclosure coordinator. For further information, refer to Related Documents for the Checklist for Staff Receiving a Whistleblower's Disclosure and the Flowchart for Receiving Disclosures.
The University prefers that disclosures are made to the protected disclosure coordinator, or any of its protected disclosure officers. Employees or Council members who receive a disclosure should immediately seek guidance from the protected disclosure coordinator, or a protected disclosure officer.
2. Receiving and assessing disclosure
The protected disclosure coordinator or the protected disclosure officer will assess whether the disclosure is in accordance with Part 2 of the Act and concerns Monash University, an employee or Council member.
The disclosure is in accordance with Part 2 of the Act if it satisfies the following criteria, that:
All disclosures assessed to be protected disclosures are referred to the protected disclosure coordinator (see Section 3).
Where a disclosure is assessed not to be a protected disclosure, the protected disclosure officer will decide how the matter should be responded to in consultation with the protected disclosure coordinator. Even if a disclosure is not a protected disclosure, there may be other Monash University policies and procedures that apply.
If the disclosure concerns an employee, officer or member of another public body, the person who has made the disclosure must be advised of the correct person or body to whom the disclosure should be directed.
3. Managing protected disclosures
The protected disclosure coordinator will impartially assess whether the disclosure is a public interest disclosure. This assessment will be made within 45 days of the receipt of the disclosure.
Where the protected disclosure coordinator concludes that the disclosure amounts to a public interest disclosure, he or she will:
In most circumstances, a welfare manager will only be required where a disclosed matter proceeds to investigation. However, public bodies are obliged to protect all persons who make a protected disclosure, regardless of whether that disclosure is determined to be a public interest disclosure that warrants investigation. The welfare manager will monitor the needs of the whistleblower, provide advice and support. For further information on the responsibilities of the welfare manager, refer to the Checklist for Welfare Managers for Whistleblowers at Monash University.
The Act makes it a criminal offence for a person to:
A whistleblower may take civil action against a person where detrimental action has been, or may have been taken against them for reprisal against the protected disclosure.
Where the protected disclosure coordinator concludes that the disclosure is not a public interest disclosure, he or she will:
Importantly, if a determination is made that the disclosure is not a public interest disclosure, it does not alter the decision that it is a protected disclosure. The protections of Part 3 of the Act (which include the protection from reprisals) continue to apply in this situation.
In either case, the protected disclosure coordinator will make the decision notification and the referral within 14 days of the conclusion of the assessment. Notification to the whistleblower is not necessary where the disclosure has been made anonymously.
The protected disclosure coordinator will periodically collate and publish statistics on disclosures made.
4. Investigating public interest disclosure
Usually the Ombudsman will refer a public interest disclosure to the University for investigation.
The protected disclosure coordinator will:
Where the Ombudsman or the whistleblower requests information about the progress of an investigation, that information will be provided within 28 days of the date of the request.
The investigator will:
The protected disclosure coordinator may approve, if reasonable, an extension of time requested by the investigator.
The University will have regard to the following issues in ensuring procedural fairness, specifically that:
The investigator will make contemporaneous notes of all discussions and phone calls, and all interviews with witnesses will be tape-recorded. All information gathered in an investigation will be stored securely. Interviews will be conducted in private and the investigator will take all reasonable steps to protect the identity of the whistleblower.
Where disclosure of the identity of the whistleblower cannot be avoided, due to the nature of the allegations, the investigator will warn the whistleblower and his or her welfare manager of this probability.
It is in the discretion of the investigator to allow any witness to have legal or other representation or support during an interview. If a witness has a special need for legal representation or support, permission should be granted.
The protected disclosure coordinator will make a decision regarding the referral of an investigation to the Ombudsman where, on the advice of the investigator the investigation:
The Ombudsman will monitor the public interest disclosure investigation. If the Ombudsman is not satisfied with an investigation by the University, the Ombudsman may take it over.
If the whistleblower has reasonable grounds to be dissatisfied with the investigation, they may request the Ombudsman conduct the investigation.
The University is not obliged to provide information to the whistleblower where that information has already been given to the whistleblower, or where giving the information would endanger the safety of any person or prejudice the outcome of the investigation.
Section 109 of the Freedom of Information Act excludes the application of FOI to any document that relates to a disclosure made under the Whistleblower Protection Act.
5. Reporting and managing investigation outcome
Where the investigator has found that the conduct disclosed by the whistleblower has occurred recommendations made by the investigator will include:
Where the investigator’s report is to include an adverse comment against any person, that person will be given the opportunity to respond and his or her defence will be fairly included in the report. The report will not disclose particulars likely to lead to the identification of the whistleblower.
If the protected disclosure coordinator is satisfied that the investigation has found that the disclosed conduct has occurred, he or she:
Where the investigation concludes that the disclosed conduct did not occur, the protected disclosure coordinator will report these findings to the Ombudsman, the whistleblower and the Vice-Chancellor. This does not mean that the full investigation report will be disclosed.
Where the allegations in a disclosure have been investigated, and the person who is the subject of the disclosure is aware of the allegations or the fact of the investigation, he or she should be formally advised of the outcome of the investigation.
The protected disclosure coordinator will ensure the whistleblower is kept informed in general terms of action taken in relation to his or her disclosure, the handling of a protected disclosure including any investigation, and the time frames that apply. The whistleblower will be given reasons for decisions made by the University in relation to a protected disclosure. All communication with the whistleblower will be in plain English. In most cases, communication between the whistleblower and the protected disclosure coordinator will be in writing, although it may also be verbal.
6. Occurrence of detrimental action
All staff members will 240 penalty units ($28,036.80 – 2009 / 2010) or two years’ imprisonment, or both. The taking of detrimental action in breach of this provision can also be grounds for making a disclosure under the Act and can result in an investigation.
The taking of detrimental action against a whistleblower in reprisal for the making of a disclosure is an offence against the Act and these procedures, as well as grounds for making a further disclosure.
Where such detrimental action is reported, the protected disclosure coordinator will assess the report as a new disclosure under the Act.
Where the protected disclosure coordinator is satisfied that the disclosure is a public interest disclosure, he or she will refer it to the Ombudsman.
If the Ombudsman subsequently determines the matter to be a public interest disclosure, the Ombudsman may investigate the matter or refer it to another body for investigation as outlined in the Act.
Where concerns of possible detrimental action are notified by the whistleblower or their welfare manager to the protected disclosure coordinator, consideration will be given to ways to protect the whistleblower. Possible actions may include:
A whistleblower may request action be taken to protect them from detrimental action.
7. Managing Whistleblowers implicated in improper conduct
Where a person who makes a disclosure is implicated in misconduct, the University will handle the disclosure and protect the whistleblower from reprisals in accordance with the Act, the Ombudsman’s guidelines and these procedures. The University acknowledges that the act of whistleblowing should not shield whistleblowers from the reasonable consequences flowing from their involvement in any improper conduct. Section 17 of the Act specifically provides that a person’s liability for his or her own conduct is not affected by the person’s disclosure of that conduct under the Act. However, in some circumstances, an admission may be a mitigating factor when considering disciplinary or other action.
The Vice-Chancellor will make the final decision on the advice of the protected disclosure coordinator as to whether disciplinary or other action will be taken against a whistleblower. Where disciplinary or other action relates to conduct that is the subject of the whistleblower’s disclosure, the disciplinary or other action will only be taken after the disclosed matter has been appropriately dealt with.
In all cases where disciplinary or other action is being contemplated, the Vice-Chancellor must be satisfied that it has been clearly demonstrated that:
The protected disclosure coordinator will thoroughly document the process including recording the reasons why the disciplinary or other action is being taken, and the reasons why the action is not in retribution for the making of the disclosure. The protected disclosure coordinator will clearly advise the whistleblower of the proposed action to be taken, and of any mitigating factors that have been taken into account.
8. Management of the person against whom a disclosure has been made
Monash University recognises that staff and Council members against whom disclosures are made must also be supported during the handling and investigation of disclosures. This procedure aims to avoid unnecessary harm to the person against whom a disclosure has been made, and give the individual the appropriate support, particularly as an investigation might exonerate that person from any wrongdoing. Staff who have a complaint or a “disclosure” made against them may wish to access the Checklist for Respondents to Whistleblower Complaints at Monash University.
The University will take all reasonable steps to ensure the confidentiality of the person who is the subject of the disclosure during the assessment and investigation process. Where investigations do not substantiate disclosures, the fact that the investigation has been carried out, the results of the investigation and the identity of the person who is the subject of the disclosure will remain confidential.
The protected disclosure coordinator will ensure the person who is the subject of any disclosure investigated by or on behalf of the University is:
Where the allegations in a disclosure have been investigated and the person who is the subject of the disclosure is aware of the allegations or the fact of the investigation, the protected disclosure coordinator will formally advise the person who is the subject of the disclosure of the outcome of the investigation.
The University will give its full support to a person who is the subject of a disclosure where the allegations contained in a disclosure are clearly wrong or unsubstantiated. If the matter has been publicly disclosed, the Vice-Chancellor will consider any request by that person to issue a statement of support setting out that the allegations were clearly wrong or unsubstantiated.
Whistleblowers are advised that it is in their own interests to keep disclosures confidential by only discussing related matters with authorised persons within the University or officers of the Ombudsman’s office or other persons authorised by law. The fewer people who know about the report, the more likely the University can protect the identity of the whistleblower and protect them from detrimental action.
If a disclosure is investigated it is often necessary to interview employees in the area where the suspected wrongdoing occurred. While efforts are made to keep the matter confidential, the conduct of these interviews may result in persons becoming aware of the disclosure, and the whistleblower’s identity, or forming suspicions and guessing about these matters.
The protected disclosure coordinator manages a confidential and secure filing system for all files in relation to disclosures under these procedures.
The protected disclosure coordinator will take all necessary steps to ensure that the identity of the whistleblower and the identity of the person who is the subject of the disclosure are kept confidential.
Any person who receives information due to the handling or investigation of a protected disclosure must not disclose that information except where an exception under section 22 of the Act applies. These exceptions include:
Note that despite these exceptions, there are prohibitions in the Act regarding the publication or disclosure of particulars which is likely to lead to the identification of the whistleblower.
Section 109 of the Freedom of Information Act excludes the application of FOI to any document that relates to a disclosure made under the Whistleblower Protection Act.
All staff, students and University council members must comply with the Whistleblowers Act and this procedure. Any failure to do so may lead to disciplinary action.
Protected disclosure officers will:
The protected disclosure coordinator has a central role in the internal reporting system, and will establish a secure register to record the information required to be published in the annual report, and to generally keep account of the status of whistleblower disclosures. The register will be confidential and will not record any information that may identify the whistleblower. In addition the protected disclosure coordinator will:
The welfare manager will:
The investigator will:
Workplace Relations, Monash HR will:
The role of the Ombudsman under the Act is to:
Protected disclosure coordinator
The “Protected Disclosure Coordinator” is the person at Monash University who has the central role in the internal reporting system under the “Conduct and Compliance Procedure – Whistleblowers”.
Mr Peter Marshall
Protected disclosure officers
The Protected Disclosure Officers are the people at Monash University who assist the Protected Disclosure Coordinator with the receipt of disclosures under the “Conduct and Compliance Procedure – Whistleblowers”.
Professor Adam Shoemaker
Professor Edwina Cornish
Professor Helen Bartlett
Ms Cathrine Harboe-Ree
Disclosures of improper conduct or detrimental action by Monash University or its staff, can be made by telephone (international callers 0011 + 61 + 3 + phone number), in person, by email or by post.
Written correspondence should be sent
to the protected disclosure coordinator or any of the above Protected
Disclosure Officers, at:
A disclosure about improper conduct or detrimental action by Monash University or its staff, and queries about whistleblower complaints, may also be made directly to the Ombudsman.
The Ombudsman Victoria
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