Whistleblowing Strategy

If, in blowing the whistle, you seek an outcome on behalf of the public and not only for your own personal interest or gain, then you are making a disclosure in the public's interest and you are a whistleblower.

That is, your disclosure is a public-interest disclosure and you are an agent or relator for the state, because you are standing in the shoes of the public (or, in ancient times, the King), in seeking to bring the wrongdoer to account.

This legal concept was first known by the latin phrase “qui tam domino rege quam pro se ipso in hac parte sequitur,” meaning “he sues in this matter for the King as well as for himself”. You might look to the federal False Claims Act in the USA dating back to Abraham Lincoln's time for a more recent adaptation, commonly known as 'qui tam' actions.

Whistleblowing is quite different to complaining or lodging a grievance about a person bullying or victimizing you (whether for blowing the whistle or not), because in doing this you're acting for yourself and in your own interest and not the public interest. You need to be able to distinguish between the two, because many whistleblowing protection acts provide some protection for making a public-interest disclosure and consequent retaliation, but not for personal grievances or complaints.

Generally there is plenty of time to bring a worker's compensation claim at the end, when it's all over or you've successfully got yourself back to work on your own terms. So, you need to be more strategic and stay in the driver's seat, whether you want to return to work or not.

Think about when you make a motor vehicle accident claim. Once you make the claim, you've legally given your insurer the right to decide what's to be done, even to the point of being able to sell your car back to you if you don't want it written off. Workers' compensation insurance is no different. Once you make your claim, your employer is legally entitled to involve itself in your affairs and dictate how, when what and why. Your employer gets to be in the driver's seat and largely in tandem with its agent, the insurer.

It tends to be an all-too-familiar story. Your own doctor's views are no longer seen as important. You have to see their psychiatrist, not yours. S/he invariably operates on your employer's version of your history, not yours.

Some awful things happen. A person once told WBA how, as he said goodbye, the psychiatrist grasped his hand saying sympathetically. “I bet you feel like killing the bastards sometimes.” The whistleblower grimaced, barely raising a smile. You guessed it: The report came back with something like 'he shook his fist at me, shouting he'd kill the bastards'. People do bad things for very little reason sometimes and money makes it all too easy.

Now, if you can use your own leave entitlements, then you, with your doctor, can stay in the driver's seat. Generally, your employer can't direct you to see anyone without your agreement and it has to take notice of your doctor's instructions. You would need to make sure your doctor is kept fully informed regularly. All your medical certificates should provide details of your symptoms and sheet home the blame to your employer for trying to force you out. If you don't have a doctor, get one. Get a referral to a psychiatrist or psychologist. Your doctors should keep a detailed record of what's going on. Then, after you get back to work or decide to leave, you can put in what is known as a 'closed period' workers' compensation claim. Plus you'll have the only record and the best record.

It's known as a closed period claim because it is for a set period and made after the fact. You would be claiming all the usual things: Monetary reimbursement for the leave entitlements you've used, all related expenses, and compensation, if applicable. That is, you stay in control of your health and welfare.

You can do the same if you opt for medical retirement, but use your leave entitlements upfront and then claim them back at the point you leave work, because that way you stay in control of your affairs for as long as you can.

Postscript

Check the limitations claims applying under workers' compensation legislation in your jurisdiction or state at http://www.austlii.edu.au.

About WorkCover: Every employer in Queensland, unless a licensed self insurer, must have a workers' compensation insurance policy with WorkCover QLD. In other states the WorkCover authority is just one of the insurers and is also responsible for workplace health and safety regulation. Some employers are self-insurers. In Queensland, the Workplace Health and Safety division of the Department of Employment and Industrial Relations oversees all workplace health and safety.

Comcare: This is the federal equivalent of WorkCover and provides all scheme employers with an integrated safety, rehabilitation and compensation system, no matter what Australian state or territory an employer operates in or where its employees are located. It is also an industry regulator, as it uses regulatory sanctions for any demonstrable failure of the employer's duty-of-care. Refer to http://www.comcare.gov.au/.

Harnessing ordinary grief and upset to your purpose

Many whistleblowers persist when many would say, “let it go”. It may be sensible, even prudent, to do so, even if only as a temporary strategy. However, most employers, opportunistically paint that persistence as a failing. For example, they say it is a failure to be a team player, or a symptom of a burgeoning adjustment or personality disorder.

Either way, whistleblowers need to understand that. Generally speaking, if you and your employer don't agree about there being a need for a psychiatric assessment, then it is probably because there is no need. Your employer is probably trying to make out that you're suffering from a mental disability so as to get rid of you and destroy your credibility.

It's a convenience and the whistleblower is right to be upset, or even angry, and to resist. It is wrong for your employer to coerce and abuse an employee in this way and it's perfectly normal for a person to have trouble adjusting to the unhappy truth that your employer and even some of your workmates are very willing to do the wrong thing and, more seriously, to rort the workers' compensation system in this way.

The key here is for the whistleblower to understand and appreciate that when you are accused of failing to let things go, as if that was the norm, you should be saying that you are having difficulty adjusting to being coerced and forced out and that your difficulties here are entirely reasonable and to be expected, and, finally, that the cure is there for all to see. The employer need only address itself to the investigation of your allegations, which you made in the public's interest in line with its responsibilities and the usual norms of integrity, accountability and common decency.

What, you might ask, has this to do with a 'fitness-to-continue' assessment? Well, too many psychiatrists and psychologists fail to distinguish between ordinary anger, upset and grief over unresolved industrial matters and mental illness. They wrongly assume the employer's version has to be right, when they should be handing the request back until such a time as the employee and employer are as one on the employee's industrial history. Inevitably, when they fail to adhere to this discipline, they risk being seen as 'hired guns'.

Conduct of forensic (not therapeutic) consultations

In the absence of any workers' compensation claim, your employer may require you to attend a 'fitness-to-continue' assessment in circumstances of, say, extensive unplanned sick leave, but your employer must allow you to attend your own doctor if you prefer.

If you want to have a support person with you and for the process to be recorded (with a copy to you), the doctor should agree. Refer to the guidelines on the web pages under Civil Remedies, Other Ways to Blow the Whistle, Resources and Overseas: Whistleblowers - In the Public Interest for the respective ethical and professional guidelines. If not, the employer must refer you to another doctor.

Ascertain whether the doctor has been supplied with the same documents you were. If not, ask for the consultation to be postponed until the documents are made available, with sufficient time for you to consider them and raise an objection if required.

If there is no agreement between you and your employer as to the industrial history and the need for an assessment, ask the doctor to defer the consultation until such a time as there is agreement and take your leave.

Alternatively, continue with the assessment but, either way, inform the doctor why you think the two versions differ factually. When asked, explain that you are having difficulty with adjusting to being forced out of your employment in reprisal for speaking out in the public's interest and that you think that anger, disappointment, and even grief, with symptoms like anxiety and depression, are neither unusual nor unexpected in these circumstances.

Be reasonable at all times and prepared to concede that others may have a different view. In this way, you go some way to establishing your bona fides and general credibility. Make sure you understand the question before you respond and rely only on the facts as you know them. Don't speculate or offer an opinion, unless you're prepared to acknowledge that at the time.

Getting back to work

Understand that if you want to return to work, you need to appreciate that, while you think your employer has acted shamelessly, s/he isn't the first and obviously won't be the last, so that (when asked) you can say you can work with them again. Remember, you don't have to like or respect them; you just have to be courteous and put work first in your dealings with them. That's do-able and it's all that an employer can ask of you, anyway.

In other words, don't take the position that your return to work is conditional on the employer making sure you are never bullied and harassed again, because that is not possible. Instead, ask for the thing that is possible: Ask the employer to ensure that they'll deal with any complaint you might make in the future fairly, and in line with their policy and procedure.

If you don't, you give your employer an irresistible opportunity to decline to have you back, because (they say) they cannot possibly guarantee that it will never happen again. It doesn't say much for your employer. They could explain they will have you back and undertake to do the right thing by you if there is a next time, but they won't. You've given them a convenient excuse and they'll take it. So, get thinking. Be more strategic.

If you wanted a good mechanic or painter or doctor, you would probably look on the net and in the phone book and ask a few friends. You would probably consider their track record, whether they listened, treated you as a twit, explained what needed to be done in language you could understand with a view to you understanding (without being patronising), and whether they were prepared to give a free quote and encourage you to get a few other quotes before deciding.

Well, it is not so different with lawyers and you need to be upfront about it. Contact the Law Society in your state and get (say) three names of lawyers accredited in the area you need and go from there, assuming none of your friends can recommend a lawyer or two to start with.

What you do need to keep in mind is that the law is a big body of information and it is not possible or economically sensible for any lawyer to practice in all areas of law. So, ask whether they have had experience in the relevant area, and be prepared to chase a number of leads before you line up a couple of interviews (of the no-charge, in-person or on-the-phone variety).

Be prepared to take a bit of time. It is generally not that urgent, but if there is some urgency, be sensible with it, as a good choice at the beginning will save a lot of heartache, disappointment and money later.

Be comfortable with saying, after the first interview and before you decide, that you will think about it and get back to them. Be prepared to swap lawyers along the way, although there are a few traps here. If you know you can be comfortable with doing all of this, you will feel less urgent and less unhealthily dependent on your lawyer.

Don't defer to them just because they are the lawyer and you are not. Do your homework. Look it up and follow your intuition and good sense.

If your instinct tells you something is not right, ask the question. Don't ever agree if all of your senses are on high alert. Do your homework, because the law is based on practical good sense and fairness, even if the practice of it sometimes is not. Then think about what you are told and find a friend or colleague who has a good head for thinking things through. Talk it through and then, and only then, make a choice.

Giving Instructions

Lawyers often talk about having got their "instructions' from their clients. It should mean what it says, that is, that you have told your lawyer to do one thing or another. It shouldn't mean that you've simply been told what is going to happen.

Obviously, if you want to be in a position to give instructions, you need to be able to work out what you want to be done on your behalf.

In the medical setting, this exchange between doctor and patient is talked about as being put in a position to be able to give an "informed consent". That is, your doctor has taken the time to explain what can be done, how it could be done and what the likely outcomes might be in terms of best practice and evidence-based medicine. The law says that you have a right to be so informed and that your doctor has a legal obligation to inform you adequately as to the options and outcomes.

You and your lawyer are in no different a situation. Your lawyer has a legal duty and obligation to advise you about the law applying in your circumstances, the legal options open to you, the likely outcome of each possibility, how that can be accomplished, and the potential cost of attempting to do it all before getting your instructions.

For example, sending you an extract from the legislation applying in your circumstances, without telling you (in writing or in person) what that might mean for you, is just not good enough. You need that information and the advice about the law's operation and effect on your circumstances upfront, so you can develop a view, ask questions and make an informed choice.

Don't buy the "not enough time, we have to (etc.)… it's urgent" line. If the other side is pressing your lawyer for an answer, tell your lawyer to tell them they will have to wait, because you (and your lawyer) need to ensure that you have full information and advice before you give instructions.

Also, don't buy the "the court ordered us to do this or that" line without question. Courts, or registrars and judges are bound by the rules that give them their jurisdiction (authority). Orders made by the court, except for the final decision on hearing the substantive matter or on a motion, are generally made by consent between the two sides or in court, when one side concedes or gives ground. That is, your lawyer probably asked for whatever it was that was done, so ask the question.

Orders made by a registrar at a mention and directions hearing are orders made by consent because generally the registrar does not have the power (authority) to decide between the competing demands of your lawyer and the lawyer on the other side. If there is no agreement between the parties after a bit of nudging by the registrar, it usually has to be brought before a judge. So, ask how the system works, look up the Court Rules on the net, and let your lawyer know by your actions that you are going to think about what you are told and you intend to give "instructions", not just supply him or her with information.

Negotiations

The negotiations leading to a settlement can be really stressful. Make sure you have someone on your team with whom you can discuss it. It might not be your lawyer. Find a level-headed colleague; it should be one who can actually get on top of the detail and think along with you. Make sure s/he is able to be contacted or is present at any negotiation with the other side. If your lawyer doesn't like it, then insist; tell him/her it is not negotiable.

Most importantly, if you are heavy and tight in the chest and feel like you are being done over, say 'no' and get out of there to fight another day, because you probably are being taken for a fool and you will take a long time to forgive yourself.

Legal Costs

Lawyers are obliged by the Act that governs their practice to inform you fully about the costs you might incur, what their hourly fees and charges are and how they expect them to be paid or not, and they must get your written consent before they proceed to act for you. This is generally called a costs agreement.

Things don't always go according to plan, so keep in mind that even if you haven't actually got around to signing the costs agreement, it may be held to be legally binding somewhere down the track, because of the amount of discussion that went on around it and because the lawyer went on to represent you.

The best way is to ask your questions and get them sorted out upfront. Don't leave it to others to decide, when a dispute develops, about how much you owe based on what was or wasn't said. Remember, it is not unusual for a lawyer to adapt the terms of the usual costs agreement to suit the particular circumstances.

The word 'Costs' is used to describe or include 'party-party' costs, 'solicitor-client' costs and disbursements (or expenses). Party-party costs are those that are generated by the letters (etc.) that go back and forth between the lawyers for each side. The solicitor-client costs are those that are incurred every time you deal with your lawyer and/or he/she does something like arranging for an expert's report to be done. Disbursements include the costs that the lawyer incurs on your behalf, like the barrister's fees, the expert's costs, the photocopying and postage, etc.

Costs agreements are required to spell out the hourly fees applying, when and who is responsible for paying the party-party costs, the solicitor-client costs and the disbursements and any other conditions applying. If it isn't clear, get the language changed so that it is clear to you.

'No-win, no-fee' agreements usually mean that you won't be asked to pay the party-party costs, because the lawyer is expecting to get the other side to cover those costs in any settlement that might eventuate. You would still be liable for the solicitor-client costs and disbursements.

'No-win, no-fee' can mean you won't be liable for any of the costs, including the solicitor-client costs and disbursements. Make sure you know what is intended before you agree to it. Remember, too, that lawyers who are willing to offer a 'no-win, no-fee' arrangement may ultimately resist your attempt to get them to do something or other, because they are funding the action (not you), and they don't want it to go on forever. They want to get paid. It's just a variation on the old theme of he who pays the piper decides the tune etc. So, get it right first up!

Note too, that 'no-win, no-fee' agreements mostly assume that the case will be settled by agreement, as going on to trial is expensive and, mostly, not viable commercially. You might think your case is a shoe-in, but the lawyer may not and you are asking them to take the risk. Ultimately, getting some understanding of the difficulties your case might impose and what the lawyer is prepared to take on (at the outset) will make the outcome much more palatable for both.

Finally, remain reliable, consistent and diligent in what you do and provide to the project.

Settlements

The terms of settlement are usually set out in the form of a deed. It will start by setting out the parties to the deed, followed with a brief recitation of the basic circumstances; these are often called the 'recitals' and underpin the need for the deed.

The 'operative' clauses usually follow and set out what is to happen, i.e., when and who is to do it, and they include things like how and when the settlement amount is to be paid. They will usually include things like what you're prepared to give up to get a settlement. For example, you might agree to keep the amount of settlement completely confidential, except for direct family, or you might agree never to sue the other party again in relation to what's been going on and that they can use the deed to stop you doing that. These demands are common to most deeds, although you might want them to be mutual.

The first draft of a deed is just that - a draft - so feel free to put an alternative and work towards agreeing the final wording. Get independent legal advice.

If the one of the parties fails to do what the deed requires, then the other party can sue for performance of the deed in any court of competent jurisdiction.

'Gag' clauses can create real concern if the demand is that you will never speak publicly again about any of the things that led you to blow the whistle in the first place. Generally 'gag' clauses are not acceptable, particularly if they assume that compliance would require a person to lie. A better way is to be very public about the entire whistleblowing experience from the outset, so that it never becomes an issue.

Look through the newspapers, listen to the radio and watch television. Find out which journalists work in your area of interest. Get together a short chronology of the events to date. Keep it brief and to-the-point. Contact a journalist in each media and start building a relationship that will carry you through the entire process. Supply the journalist with the chronology and a copy of the documents (from others) that establish the points you make. (Always keep the original documents.) Be ready for the opportunities as they present along the way as your story unfolds. You're looking for a wider more sustained media coverage than just one item, whether on radio, newsprint or TV, or all three.

Understand the limitations of your own story. Most are not sufficiently significant to warrant a story on television or even a mention on the radio. It may be urgent, even riveting (to you), but not rate a wider audience on radio or television from its perspective. However, don't be despondent; be realistic, because media coverage is only one of the tools available.

There is a time and place for mass media coverage. Generally, this is sooner rather than later, as it gets it all out there and it improves your ability to obtain a better outcome. So remember, if an opportunity comes your way, take it, because it probably won't come again.

Educate yourself about the limitations imposed on the journalist by his/her editors and program managers and work within them with the journalist.

Understand that the public's (and your) interest is best served by keeping everything out there in the open. Understand that once the other party succeeds in getting you to keep things confidential, you've given away many of your best options. So be brave, because once you start down this path, it gets easier.

Don't be embarrassed or self-conscious. If anyone is to be embarrassed, let it be the one you've blown the whistle on, because he/she has something to be embarrassed about. You shouldn't be embarrassed by speaking out.

Further reading: Brendan Jones, "A whistleblower's guide to journalists"

Information is a powerful tool in the hands of a strategic whistleblower, and the FOI process provides the easiest way of getting hold of reliable information which you can use freely. You can use information obtained under FOI legislation in any forum. So, start early before you blow the whistle.

Once you blow the whistle, your employer and others may try to delay and even withhold documents that would ordinarily be made freely available. So, work out which agencies were part of the communication loop and apply to one of the other agencies, as it may be less politically motivated to resist disclosure.

Appreciate that if your employer uses every/any opportunity to delay processing your request, then it is likely that it wants to withhold the information until after it has stitched up an agreement with you that you will never ever make a claim on it again about your employment. Don't let it deter you; work out the rules and work around it.

FOI operates on a user-pays system, which includes charges for the application, photocopying and an hourly rate for the time spent locating and assessing the documents. Costs can be inflated and also used as a means of resisting disclosure.

Educate yourself about how the agency should operate in terms of timeframes, costs and the laws governing the exemption of documents from disclosure by checking the FOI Guidelines available on most state and federal websites of the Office of the Ombudsman. It may take time, but is usually productive, so start early.

Note that those in NSW should refer to the Information and Privacy Commission at https://www.ipc.nsw.gov.au

If you want more technical information on how FOI legislation should work in support of your application, get hold of a copy of a book by Anne Cossins at any major library. It deals with NSW law, but by reference to other state and federal laws. Ask for Cossins, A (1997) Annotated Freedom-of-Information Act New South Wales: History and Analysis, Law Book Company Ltd, Sydney.

Information obtained under FOI legislation can be used as evidence in a court or tribunal to prove your case or, indeed, in any other forum where you need to establish that your allegations can be relied upon. For example, the information may be used in support of letters to MPs, complaints to investigative authorities and media and parliamentary committee inquiries.

Go to http://www.austlii.edu.au and check the legislation. In most jurisdictions the legislation is still known as the Freedom-of-Information Act.

Australian Standard (AS 8004-2003)

This is a standard for the implementation and handling of whistleblowing schemes by private sector organizations; it was developed and published by Standards Australia. Refer to http://www.standards.com.au.

For general information about AS8004-2003 and protections for whistleblowers under the Corporations Act, go to http://www.asic.gov.au/asic.

State public-interest disclosure guidelines

The Guidelines describe model policies & procedures for the handling of public interest disclosures under the Protected Disclosures Act 1994 and were developed and published by the NSW Ombudsman. A current copy of the policies & procedures is available at http://www.ombo.nsw.gov.au.

Similar guidelines are available in each territory or state. To locate these, search for 'ombudsman' and follow the prompts.

Federal public interest disclosures guidelines

This contains model policies and procedures for the handling of public-interest and other complaints that were developed and published by the Commonwealth Ombudsman in its "Better Practice Complaint Handling Guide".

In the absence of federal whistleblower-protection laws, many government agencies and authorities have developed internal workplace policies and procedures or other instruments for the handling of public-interest disclosures (often termed protected disclosures) in line with model policies and procedures and/or existing state laws. Refer to the relevant instrument or website.

Premier and Cabinet: memorandums and circulars

This contains memoranda and circulars issued by the Premier in Cabinet (e.g.) in NSW about 'fitness to continue' procedures. You can either browse the memos and circulars by year (from 1990), or search them by document title or body. Searching by title will give fewer, but more accurate results. If you're unable to find what you're looking for, you should then try searching by body. Other states have similar arrangements. Search the web for the relevant department of premier and cabinet.

The Royal Australian and New Zealand College of Psychiatrists (RANCP)

This is a set of ethical guidelines to inform and guide psychiatrists and others on the standards to apply in a therapeutic or medico-legal (forensic) role and function, and on other aspects of professional practice. Refer to the resources section of http://www.ranzcp.org.

The Australian Psychological Society

This is a set of ethical guidelines to inform and guide psychologists and others on the standards to apply in a therapeutic or medico-legal (forensic) role and function, and on other aspects of professional practice. Refer to http://www.psychology.org.au.