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Whistleblower procedures

These procedures establish a system for reporting disclosures of improper conduct or detrimental action by the University or its staff. The system enables such disclosures to be made to the protected disclosure coordinator or to one of the nominated protected disclosure officers. Disclosures may be made by staff members, students or by members of the public.

It is important to note that these guidelines will not replace existing university grievance processes. The proposed set of guidelines are to be followed only if a staff member, student or member of the public elects to make a disclosure of suspected or alleged corrupt or improper conduct and the disclosure is in accordance with Part 2 of the Act. The proposed set of guidelines is designed to complement normal communication channels between University management and staff. Staff are encouraged to continue to raise appropriate matters at any time with their supervisors.

Receiving and assessing disclosures

Has the disclosure been made in accordance with Part 2 of the Act?

Where a disclosure has been received by the protected disclosure officer or by the protected disclosure coordinator, he or she will assess whether the disclosure has been made in accordance with Part 2 of the Act and is, therefore, a protected disclosure.

Has the disclosure been made to the appropriate person?

For the disclosure to be responded to by the University, it must concern a staff member. If the disclosure concerns a staff member, 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. If the disclosure has been made anonymously, it should be referred to the Ombudsman. (See table in 6.2)

Does the disclosure contain the essential elements of a protected disclosure?

To be a protected disclosure, a disclosure must satisfy the following criteria:

  • Did a natural person (that is, an individual person rather than a corporation) make the disclosure?
  • Does the disclosure relate to conduct of the University or a staff or Council member acting in their official capacity?
  • Is the alleged conduct either improper conduct or detrimental action taken against a person in reprisal for making a protected disclosure?
  • Does the person making a disclosure have reasonable grounds for believing the alleged conduct has occurred?
  • Has the person making a disclosure made that disclosure only to the Ombudsman or the University’s protected disclosure coordinator and officers?
  • Where a disclosure is assessed to be a protected disclosure, it is referred to the protected disclosure coordinator. The protected disclosure coordinator will determine whether the disclosure is a public interest disclosure.
  • Where a disclosure is assessed not to be a protected disclosure, the matter does not need to be dealt with under the Act. The protected disclosure officer will decide how the matter should be responded to in consultation with the protected disclosure coordinator.

Is the disclosure a public interest disclosure?

Where the protected disclosure officer or coordinator has received a disclosure that has been assessed to be a protected disclosure, the protected disclosure coordinator will determine whether the disclosure amounts to a public interest disclosure. This assessment will be made within 45 days of the receipt of the disclosure.

In reaching a conclusion as to whether a protected disclosure is a public interest disclosure, the protected disclosure coordinator will consider whether the disclosure shows, or tends to show, that the staff member to whom the disclosure relates:

  • Has engaged, is engaging or proposes to engage in improper conduct in his or her capacity as a staff or Council member.
  • Has taken, is taking or proposes to take detrimental action in reprisal for the making of the protected disclosure.

Where the protected disclosure coordinator concludes that the disclosure amounts to a public interest disclosure, he or she will:

  1. Notify the person who made the disclosure of that conclusion; and
  2. Refer the disclosure to the Ombudsman for formal determination as to whether it is indeed a public interest disclosure.

Where the protected disclosure coordinator concludes that the disclosure is not a public interest disclosure, he or she will:

  1. Notify the person who made the disclosure of that conclusion; and
  2. Advise that person that he or she may request the University to refer the disclosure to the Ombudsman for a formal determination as to whether the disclosure is a public interest disclosure, and that this request must be made within 28 days of the notification.In either case, the protected disclosure coordinator will make the notification and the referral within 14 days of the conclusion being reached by the public body.

Notification to the whistleblower is not necessary where the disclosure has been made anonymously.

Investigations

Introduction

Where the Ombudsman refers a protected disclosure to the University for investigation, the protected disclosure coordinator will appoint an investigator to carry out the investigation.

The objectives of an investigation will be:

  • To collate information relating to the allegation as quickly as possible. This may involve taking steps to protect or preserve documents, materials and equipment.
  • To consider the information collected and to draw conclusions objectively and impartially.
  • To maintain procedural fairness in the treatment of witnesses and the person who is the subject of the disclosure.
  • To make recommendations arising from the conclusions drawn concerning remedial or other appropriate action.

Terms of reference

Before commencing an investigation, the protected disclosure coordinator will draw up terms of reference and obtain authorisation for those terms from the Vice-Chancellor. The terms of reference will set a date by which the investigation report is to be concluded, and will describe the resources available to the investigator to complete the investigation within the time set. The protected disclosure coordinator may approve, if reasonable, an extension of time requested by the investigator. The terms of reference will require the investigator to make regular reports to the protected disclosure coordinator who, in turn, is to keep the Ombudsman informed of general progress.

Investigation plan

The investigator will prepare an investigation plan for approval by the protected disclosure coordinator. The plan will list the issues to be substantiated and describe the avenue of inquiry. It will address the following issues:

  • What is being alleged?
  • What are the possible findings or offences?
  • What are the facts in issue?
  • How is the inquiry to be conducted?
  • What resources are required?

At the commencement of the investigation, the whistleblower should be:

  • Notified by the investigator that he or she has been appointed to conduct the investigation.
  • Asked to clarify any matters.
  • Asked to provide any additional material he or she might have.

The investigator will be sensitive to the whistleblower’s possible fear of reprisals and will be aware of the statutory protections provided to the whistleblower.

Natural justice

The principles of natural justice will be followed in any investigation of a public interest disclosure. The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision-maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process.

The University will have regard to the following issues in ensuring procedural fairness:

  • The person who is the subject of the disclosure is entitled to know the allegations made against him or her and must be given the right to respond. (This does not mean the person must be advised of the allegation as soon as the disclosure is received or the investigation has commenced).
  • If the investigator is contemplating making a report adverse to the interests of any person, that person should be given the opportunity to put forward further material that may influence the outcome of the report and that person’s defence should be fairly set out in the report.
  • All relevant parties to a matter should be heard and all submissions should be considered.
  • A decision should not be made until all reasonable inquiries have been made.
  • The investigator or any decision-maker should not have a personal or direct interest in the matter being investigated.
  • All proceedings must be carried out fairly and without bias. Care should be taken to exclude perceived bias from the process.
  • The investigator must be impartial in assessing the credibility of the whistleblowers and any witnesses. Where appropriate, conclusions as to credibility should be included in the investigation report.

Conduct of the investigation

The investigator will make contemporaneous notes of all discussions and phone calls, and all interviews with witnesses will be taped. 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.

Referral of an investigation to the Ombudsman

The protected disclosure co-ordinator will make a decision regarding the referral of an investigation to the Ombudsman where, on the advice of the investigator:

  • The investigation is being obstructed by, for example, the non-co-operation of key witnesses; or
  • The investigation has revealed conduct that may constitute a criminal offence.

Reporting requirements

The protected disclosure coordinator will ensure the whistleblower is kept regularly informed concerning the handling of a protected disclosure and an investigation.

The protected disclosure coordinator will report to the Ombudsman about the progress of an investigation.

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.

Action taken after an investigation

Investigator’s final report

Where the investigator has found that the conduct disclosed by the whistleblower has occurred, recommendations made by the investigator will include:

  • The steps that need to be taken by the University to prevent the conduct from continuing or occurring in the future.
  • Any action that should be taken by the University to remedy any harm or loss arising from the conduct. This action may include bringing disciplinary proceedings against the person responsible for the conduct, and referring the matter to an appropriate authority for further consideration.

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.

Action to be taken

If the protected disclosure coordinator is satisfied that the investigation has found that the disclosed conduct has occurred, he or she will recommend to the Vice-Chancellor the action that may be taken to prevent the conduct from continuing or occurring in the future. The protected disclosure coordinator may also recommend that action be taken to remedy any harm or loss arising from the conduct.

The protected disclosure coordinator will provide a written report to the Victorian Minister with responsibility for tertiary education, the Ombudsman and the whistleblower setting out the findings of the investigation and any remedial steps taken.

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.

Managing the welfare of the whistleblower

Commitment to protecting whistleblowers

Monash University is committed to the protection of whistleblowers against detrimental action taken in reprisal for the making of protected disclosures. The protected disclosure coordinator is responsible for ensuring whistleblowers are protected from direct and indirect detrimental action, and that the culture of the workplace is supportive of protected disclosures being made.

The protected disclosure coordinator will appoint a welfare manager to all whistleblowers who have make a protected disclosure.

All staff members will be advised that it is an offence for a person to take detrimental action in reprisal for a protected disclosure. The maximum penalty is a fine of 240 penalty units ($24,000) 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.

Detrimental action includes:

  • Causing injury, loss or damage;
  • Intimidation or harassment; and
  • Discrimination, disadvantage or adverse treatment in relation to a person’s employment, career, profession, trade or business (including the taking of disciplinary action).

Keeping the whistleblower informed

The protected disclosure coordinator will ensure the whistleblower is kept informed of action taken in relation to his or her disclosure, and the time frames that apply. The whistleblower will be given reasons for decisions made by Monash University in relation to a protected disclosure. All communication with the whistleblower will be in plain English.

Occurrence of detrimental action

The taking of detrimental action in reprisal for the making of a disclosure can be an offence against the Act 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.

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 any involvement in 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 intention to proceed with disciplinary action is not causally connected to the making of the disclosure (as opposed to the content of the disclosure or other available information);
  • There are good and sufficient grounds that would fully justify action against any non whistleblower in the same circumstances; and
  • there are good and sufficient grounds that justify exercising any discretion to institute disciplinary or other action.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.

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. 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 a public body is:

  • Informed as to the substance of the allegations.
  • Given the opportunity to answer the allegations before a final decision is made.
  • Informed as to the substance of any adverse comment that may be included in any report arising from the investigation.
  • Has his or her defence set out fairly in any report.

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.

The reporting system

Contact persons within Monash University

Disclosures of improper conduct or detrimental action by Monash University or its staff, may be made to the following officers:

Protected Disclosure Coordinator:

Mr Peter Marshall
Vice-President (Administration)
Tel: (03) 9905 2018

Protected Disclosure Officers

Professor Adam Shoemaker
Deputy Vice-Chancellor (Education)
Tel: (03) 9905 2026

Professor Edwina Cornish
Pro Vice-Chancellor (Gippsland)
Tel: (03) 9905 9300

Professor Helen Bartlett
Pro Vice-Chancellor (Gippsland)
Tel: (03) 9902 6211

Ms Cathrine Harboe-Ree
University Librarian
Tel: (03) 9905 2665

All correspondence, phone calls and emails from internal or external whistleblowers will be referred to the protected disclosure coordinator.

Where a person is contemplating making a disclosure and is concerned about approaching the protected disclosure coordinator or a protected disclosure officer in the workplace, he or she can call the relevant officer and request a meeting in a discreet location away from the workplace.

Alternative contact persons

A disclosure about improper conduct or detrimental action by Monash University or its staff, may also be made directly to the Ombudsman:

The Ombudsman Victoria
Level 9, 459 Collins Street
Melbourne Victoria 3000
(DX 210174)
Internet: www.ombudsman.vic.gov.au
Email: ombudvic@ombudsman.vic.gov.au

Tel: 9613 6222
Toll Free: 1800 806 314