The Education Act has changed.

The new legislation comes into effect on 19 May 2017. 
We have created an overview of these changes.

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You can call 0800 782 435 or email actupdates@nzsta.org.nz.

 

Protected Disclosures Act

Introduction

  1. The Protected Disclosures Act 2000 (sometimes referred to as the Whistle-blowers Act) came into effect on 1 January 2001. The Act has implications for boards of trustees and their staff.
  2. The intent of the Act is to allow employees to disclose serious wrongdoings in confidentiality where they believe on reasonable grounds that such wrongdoings have or are being committed by the employer or another employee in the organisation.

What steps does the board have to take?

  1. Boards and principals are advised to:
    1. familiarise themselves with the content of this administrative advice and Ministry of Education circular 2000/29
    2. document a board policy [see paragraph 4]
    3. identify a person who will be the protected disclosures recipient
    4. identify a second person who will be the backup protected disclosures recipient should the first person nominated be the one who the disclosure is about
    5. formulate a written internal procedure for staff
    6. communicate information, the policy, and procedure to all staff
    7. review the policy and procedure annually when reviewing policies, update if necessary, and remind staff of the procedure
    8. ensure all new staff are advised of the procedure as they are employed.

    Board policy statement

  2. A suggested policy statement for boards to consider, which could come under NAG 6 obligations, could be: “The …………………… Board of Trustees ensures procedures are in place to meet the requirements of the Protected Disclosures Act 2000". Example: board policy
  3. To comply with the Act boards are required to have an internal procedure in place that enables employees, past and present, and contractors to make protected disclosures.  These procedures need to be publicised to staff on a regular basis.
  4. Boards need to identify a person to whom disclosures can be made.  It is suggested the board appoints the principal as the person to whom protected disclosures are made.  For the purpose of this advice that person will be referred to as the protected disclosures recipient (PDR).
  5. There may be situations where the disclosure is about the principal, therefore the board is required to identify in their procedure another person as the recipient in such circumstances.
  6. By appointing the principal, the process is likely to fit within normal complaints procedures, and there is likely to be more opportunity for an investigation to be carried out discreetly.
  7. The board should ensure that the PDR has the appropriate delegated authority to investigate a complaint.  As a disclosure made within the internal procedures will likely be employment related it is suggested the PDR has the ability to:
    1. call a meeting of a committee of the board that deals with confidential employment issues
    2. contact the Governance Advisory and Support Centre for advice on investigating the alleged wrongdoing
    3. contact the board’s insurer on employment matters
    4.  refer the matter to another appropriate authority (this would normally be the police) if urgency or seriousness dictates.
  8. The board needs to be aware that if the PDR fails to take action or recommend action within 20 working days then the person who has made the disclosure is entitled to take the matter to an appropriate authority and ask them to investigate.
  9. Information which would identify the person who makes the disclosure is confidential to the PDR
          unless:
    • the person making the disclosure consents in writing to the information being disclosed, or
    •  it is essential to disclose the identifying information for reasons of an effective investigation or to
         prevent serious risk to public health or public safety or to the environment or the need for regarding
         principles of natural justice.
  10. The PDR or the board committee considering information revealed by a protected disclosure needs to determine: • does this constitute serious wrongdoing in terms of the Act?  The Act defines a serious wrongdoing as being any of the following:
    1. an unlawful, corrupt, or irregular use of public funds or public resources; or
    2. an act, omission, or course of conduct that constitutes a serious risk to public health or public safety or the environment; or
    3. an act, omission, or course of conduct that constitutes a serious risk to the maintenance of law, including the prevention, investigation, and detection of offences and the right to a fair trial; or
    4. an act, omission, or course of conduct that constitutes an offence; or an act, omission, or course of conduct by a public official that is oppressive, improperly discriminatory, or grossly negligent, or that constitutes gross mismanagement,---.”
      • what is the best course of investigation?
      • would it be advisable to refer the matter to another appropriate authority?
      • the appropriate mechanism for informing the person who made the disclosure of the outcome of the  investigation.
  11. It is unlikely that boards will have to deal with protected disclosures on a regular basis. The nature of the school environment is such that most serious issues will be identified by and dealt with through more traditional processes, e.g. the board’s complaints procedure.

    Guidelines for protected disclosure recipients

  12. There are no guidelines in the Act as to what the board needs to do when receiving a protected  disclosure, therefore this advice is based on good practice in other employment scenarios, such as sexual harassment prevention.
  13. On being approached by a staff member, former staff member, or contractor working in the school who wishes to make a protected disclosure, the PDR needs to:
    1. Ensure that any discussions with that person are carried out in a manner that protects the confidentiality of  the discloser.  It would not be unusual for a principal to talk to a staff member in private but it could be for a trustee. Meeting away from the school may resolve this issue if the PDR is a trustee. Likewise a principal needs to be cautious he/she does not reveal the discloser by beginning the investigation in such a way that links the person who made the disclosure.
    2. Inform the discloser of the protections they have including any possible reasons that information that may identify themselves may need to be disclosed.  Remind them that those protections only exist if the allegation is made in good faith. The protections are:
      • the discloser’s identity will be confidential unless you give permission to be identified*
      • the discloser cannot be victimised by your employer for having disclosed the information
      • the discloser is not liable for civil or criminal proceedings for disclosing the information
      • if the discloser believes that they have been unfairly treated in their job or unreasonably dismissed following  a disclosure they can take a personal grievance against their employer.

        *There are some limitations to this described in the Act. These are:

      1. "Every person to whom a protected disclosure is made or referred must use his or her best endeavours not to disclose information that might identify the person who made the protected disclosure unless---
        • that person consents in writing to the disclosure of that information; or
        • the person who has acquired knowledge of the protected disclosure reasonably believes that disclosure of identifying information---
          • is essential to the effective investigation of the allegations in the protected disclosure; or
          • is essential to prevent serious risk to public health or public safety or the environment; or
          • is essential having regard to the principles of natural justice.
      1. A request for information under the Official Information Act 1982 [other than one made by a member of the police for the purpose of investigating an offence] may be refused, as contrary to this Act, if it might identify a person who has made a protected disclosure.”
    3. The PDR needs sufficient information to decide if the disclosure fits into the category of serious wrongdoing and to investigate the allegation.
    4. Normally the PDR would discuss with the person making the disclosure what steps would be taken to investigate the wrongdoing.  This can include calling the committee of the board, NZSTA etc.
    5. The PDR may consider that the allegation does not fit the criteria for serious wrongdoing by the employer or a staff member.  If this is clearly the case, eg the disclosure is about a parent, the PDR could identify that to the person making the disclosure and consider with them other forms of action if necessary.
    6. The PDR can arrange a further meeting time with the discloser to discuss any outcome of an investigation that can be shared.  It is important that the person making the protected disclosure knows that the allegation has been investigated even if they cannot be told the final outcome of  that  investigation.
    7. It is good practice to keep confidential records of any meetings, notes, and investigation reports in a  secure place.
  1. Attached is a recommended information sheet for staff including the internal procedure boards may wish to adopt for their school. It is recommended new employees are provided with a copy of the internal procedure. In order to meet the requirement to regularly publicise the procedures the board could put this  policy on the list of policies for annual review with the procedure and PDR confirmed and publicised at this time.

 

 

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