Conduct and Compliance Procedure – Whistleblowers

Parent policy

Conduct and Compliance Policy

Preamble

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 supports the Act by:

• encouraging its staff, students and stakeholders to raise matters of concern internally, so that they can be appropriately addressed by the University;
• applying the principles of natural justice in any investigation of a public interest disclosure;
• recognising that staff and Council members against whom disclosures are made must also be supported during the handling and investigation of complaints;
• protecting whistleblowers against detrimental action taken in reprisal for the making of protected disclosures; and
• taking all reasonable steps to ensure the confidentiality of both the whistleblower and the person who is subject to disclosure.

This procedure does not replace existing University grievance processes and 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.

Definitions

Corrupt conduct means:

1. conduct of a person (whether or not a public officer) that adversely affects, or could adversely affect, either directly or indirectly, the honest performance of a public officer's or public body's functions; or
2. conduct of a public officer that amounts to the performance of any of his or her functions as a public officer dishonestly or with inappropriate partiality; or
3. conduct of a public officer, a former public officer or a public body that amounts to a breach of public trust; or
4. conduct of a public officer, a former public officer or a public body that amounts to the misuse of information or material acquired in the course of the performance of their functions as such (whether for the benefit of that person or body or otherwise); or
5. a conspiracy or attempt to engage in conduct referred to in paragraphs (a) to (d) above.

Detrimental action includes:

1. action causing injury, loss or damage;
2. intimidation or harassment; or
3. discrimination, disadvantage or adverse treatment in relation to a person's employment, career, profession, trade or business, including taking of disciplinary action.

Improper conduct means:

1. corrupt conduct; or
2. a substantial mismanagement of public resources; or
3. conduct involving substantial risk to public health or safety; or
4. conduct involving substantial risk to the environment – that would, if proved, constitute a criminal offence or reasonable grounds for dismissing or dispensing with, or otherwise terminating, the services of a public officer who was, or is, engaged in that conduct.

Protected disclosure means a disclosure where an individual believes on reasonable grounds, that Monash University, a staff member or a member of University Council —

1. has engaged, is engaging or proposes to engage in improper conduct in their capacity as a public officer or public body; or
2. has taken, is taking or proposes to take detrimental action as a public officer or public body.

Protected disclosure coordinator: The person at Monash University who has the central role in the internal reporting system under these procedures.

Protected disclosure officers: The people at Monash University listed in these procedures 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 a member of its staff or Council —

1. has engaged, is engaging or proposes to engage in improper conduct in their capacity as a public officer or public body; or
2. has taken, is taking or proposes to take detrimental action against a person in reprisal for a protected disclosure.

Whistleblower: Anyone internal or external to the University who makes a disclosure of alleged improper conduct or detrimental action by the University or its staff or member of its Council 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 its staff or a member of its Council to any member, officer or staff member of Monash University.

Protected disclosure officers, or other members of staff who receive a disclosure, will refer all correspondence, phone calls and emails from internal or external whistleblowers to the protected disclosure coordinator.

The University prefers that disclosures are made to the protected disclosure coordinator, or any of its protected disclosure officers (see list at the end of this procedure). Members of staff who receive a disclosure should immediately seek guidance from the protected disclosure coordinator, or a protected disclosure officer.

If the disclosure is about the Vice-Chancellor, it should be referred to the Ombudsman.

A person contemplating making a disclosure, who is concerned about approaching the protected disclosure coordinator or a protected disclosure officer in the workplace, can call the relevant officer and request a meeting in a discrete location away from the workplace.

The person may also make a disclosure:

• verbally, including by telephone;
• in writing, including by fax;
• electronically, including by email; and
• anonymously.

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, a staff member, or member of University Council.

The disclosure is in accordance with Part 2 of the Act if it satisfies the following criteria, that:

• a natural person (that is, an individual person rather than a corporation) made the disclosure;
• the disclosure relates to conduct of the University, or a staff member, or Council member acting in their official capacity;
• the alleged conduct concerns:
  • improper conduct (that is conduct that is sufficiently serious and is either corrupt, a substantial mismanagement of public resources, a substantial risk to public health or safety, or a substantial risk to the environment); or
  • detrimental action taken against a person in reprisal for making a protected disclosure; and
• the person making a disclosure has reasonable grounds for believing the alleged conduct has occurred.

All disclosures assessed to be protected disclosures are referred to the protected disclosure coordinator (see next section).

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 that apply.

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.

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:

1. notify the person who made the disclosure of that conclusion;
2. refer the disclosure to the Ombudsman for formal determination as to whether it is indeed a public interest disclosure; and
3. appoint a welfare manager to all whistleblowers (internal and external) who have made a protected disclosure.

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.

The Act makes it a criminal offence for a person to:

• take or threaten detrimental action in reprisal, when a protected disclosure is made have been made or intended to be made;
• divulge information obtained as a result of the handling or investigation of a protected disclosure without legal authority;
• obstruct the Ombudsman in performing the Ombudsman’s responsibilities under the Act including by attempting to mislead the Ombudsman; or
• knowingly provide false information under the Act with the intention that it be acted on as a disclosed matter.

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:

1. notify the person who made the disclosure of that conclusion; and
2. advise that person that he or she may request the University 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.

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

The Ombudsman will refer a public interest disclosure to the University for investigation.

The protected disclosure coordinator will:

• draw up terms of reference (including a date by which the investigation report is to be concluded, the resources available to the investigator to complete the investigation within the time set);
• obtain authorisation for those terms from the Vice-Chancellor;
• appoint an investigator to carry out the investigation;
• approve the investigator’s investigation plan; and
• keep the Ombudsman informed of general progress.

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:

• prepare an investigation plan with a list of the issues to be substantiated and the avenue of inquiry, including what is being alleged, possible findings or offences, the facts in issue, how the inquiry is to be conducted and resources required;
• make regular reports to the protected disclosure coordinator; and
• notify the whistleblower that he or she has been appointed to conduct the investigation, and ask to clarify any matters and provide any additional material he or she might have.

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 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 must 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; and
• 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.

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:

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

The Ombudsman will monitor the public interest disclosure investigation. If the Ombudsman is not satisfied with an investigation by a public body, 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.

Monash 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:

• the steps that need to be taken by the University to prevent the conduct from continuing or occurring in the future; and
• 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.

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;
• may also recommend that action be taken to remedy any harm or loss arising from the conduct; and
• 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. 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 Monash 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 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 ($26,428.80 – 2007 / 2008) 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.

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 intention to proceed with disciplinary action against the whistleblower 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 similar or equivalent 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.

8. Management of the person against whom a disclosure has been mad

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.

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; and
• 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.

9. Confidentiality

Whistleblowers are advised that it is in their own interests to keep disclosures confidential by only discussing related matters with authorised persons within Monash University or officers of the Ombudsman’s office or other persons authorised by law.

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:

1. exercising a function of Monash University under the Monash University Act 1958, Monash University (Chisholm and Gippsland) Act 1990, or Monash University (Pharmacy College) Act 1992; or
2. making a report or recommendation under the Whistleblowers Act; or
3. publishing statistics in Monash University’s annual report; or
4. in criminal proceedings for certain offences in the Whistleblowers Act.

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.

Responsibilities

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:

• receive disclosures under the Whistleblower procedure; and
• assist the protected disclosure coordinator with other aspects of this procedure from time to time.

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:

• impartially assess each disclosure to determine whether it is a public interest disclosure;
• coordinate the reporting system used by Monash University;
• be a contact point for general advice about the operation of the Act;
• be responsible for ensuring that Monash University carries out its responsibilities under the Act and the Guidelines;
• liaise with the Ombudsman in regard to the Act;
• be responsible for carrying out, or appointing an investigator to carry out, an investigation referred to Monash University by the Ombudsman;
• be responsible for overseeing and coordinating an investigation where an investigator has been appointed;
• where necessary, appoint a welfare manager to support the whistleblower;
• advise the whistleblower of the progress of an investigation into the disclosed matter;
• establish and manage a confidential filing system;
• collate and publish statistics on disclosures made;
• take all necessary steps to ensure the identity of the whistleblower and the identity of the person who is the subject of the disclosure are kept confidential;
• ensure as far as practicable that whistleblowers are protected from direct and indirect detrimental action and that the culture of the workplace is supportive of protected disclosures being made; and
• liaise with the Vice-Chancellor of Monash University.

The welfare manager will:

• examine the immediate welfare and protection needs of a whistleblower who has made a disclosure and seek to foster a supportive work environment;
• advise the whistleblower of the legislative and administrative protections available to him or her;
• listen and respond to any concerns of harassment, intimidation or victimisation in reprisal for making a disclosure;
• keep a contemporaneous record of all aspects of the case management of the whistleblower, including all contact and follow-up action; and
• endeavour to ensure that the expectations of the whistleblower are realistic.

The investigator will:

• collate information relating to the allegation as quickly as possible - this may involve taking steps to protect or preserve documents, materials and equipment;
• consider the information collected and to draw conclusions objectively and impartially;
• maintain procedural fairness in the treatment of witnesses and the person who is the subject of the disclosure;
• be sensitive to the whistleblower’s possible fear of reprisals and will be aware of the statutory protections provided to the whistleblower; and
• make recommendations arising from the conclusions drawn concerning remedial or other appropriate action.

The Human Resources Division will:

• review this procedure annually to ensure that it meets the objectives of the Act and accord with the Ombudsman’s guidelines.

The role of the Ombudsman under the Act is to:

• determine whether disclosures are public interest disclosures;
• investigate matters disclosed in public interest disclosures;
• prepare and publish guidelines for the procedures to be followed by public bodies in relation to the Act;
• monitor investigations by public bodies;
• monitor investigations by the Chief Commissioner of Police;
• review the procedures and implementation of public bodies in relation to the Act; and
• report findings of an investigation to Parliament as required under the Act.

Contact persons within Monash Universit

Protected disclosure coordinator:

Mr Peter Marshall
Vice-President (Administration)
Tel: (03) 9905 2018
Email: Peter.marshall@adm.monash.edu.au

Protected disclosure officers

Professor Adam Shoemaker
Deputy Vice-Chancellor (Education)
Tel: (03) 9905 2026
Email: Adam.shoemakre@adm.monash.edu.au

Professor Edwina Cornish
Deputy Vice-Chancellor (Research)
Tel: (03) 9905 9300
Email: Edwina.cornish@adm.monash.edu.au

Associate Professor Harry Ballis
Acting Pro Vice-Chancellor, Gippsland
Tel: (03) 9902 6211
Email: Harry.ballis@adm.monash.edu.au

Ms Cathrine Harboe-Ree
University Librarian
Tel: (03) 9905 2665
Email: Cathrine.harboe-ree@lib.monash.edu.au

Disclosures of improper conduct or detrimental action by Monash University or its staff, should be made by telephone (international callers 0011 + 61 + 3 + phone number), in person, by email or by post to the following officers.

Written correspondence should be sent to the protected disclosure coordinator or any of the above protected disclosure officers, at Clayton campus, Wellington Road, Clayton, Victoria 3800, Australia.

Alternative contact person

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 (North Tower)
Melbourne Victoria 3000
(DX 210174 Melbourne)
Internet: www.ombudsman.vic.gov.au
Email: ombudvic@ombudsman.vic.gov.au
Facsimile: 03 9614 0246
Telephone:

• 9613 6222 (international callers 0011 + 61 + 3 + phone number)
• Toll Free: 1800 806 314 (regional only)
• TTY via the National Relay Service (www.relayservice.com.au) (a phone solution for people who are deaf or have a hearing or speech impairment) on 133 677 or 1800 555 677
• Interpreter service via telephone - 131 450, On-site - 1300 655 082

Related Enterprise Agreement Clauses

• Unsatisfactory Performance and Disciplinary Procedures

Related Documents

• Whistleblowers' Protection Act (“the Act”) 2001