This policy provides information about the processes and protections available to whistleblowers of the Douglas Group Limited, including Douglas Partners Pty Ltd, Ground Test Pty Ltd or any Related Bodies Corporate of Douglas Group Limited (i.e. a subsidiary, holding company or a subsidiary of a holding company and includes all Douglas Group companies) (“DG”).
It is provided in accordance with the Corporations Act 2001 (“the Act”) and applies to all current and former employees, contractors and suppliers of goods and services to DG, as well as their relatives, spouses and dependants. It does not form part of any contract or employment instrument.
2. What is Whistleblowing?
Whistleblowing is the disclosure of information about actual or suspected misconduct or breaches of the law within a company or organisation.
Whistleblowers play an important role in calling out misconduct that may harm DG, its employees, clients or the general community. These concerns can often only come to light when people speak up.
DG is committed to ensuring a safe environment for people to express concerns and is committed to supporting individuals throughout any process related to their concern.
3. Purpose of this Policy
This policy is an important tool to help DG identify wrongdoing that may not be uncovered unless there is a safe and secure means for disclosing it. By adopting this policy, DG seeks to achieve the following:
- encourage disclosures of wrongdoing;
- ensure disclosures are dealt with appropriately and on a timely basis;
- provide transparency around how disclosures will be received, handled and investigated;
- meet DG’s legal and regulatory obligations;
- support DG’s values; and
- foster an ethical culture within DG.
4. What Types of Wrongdoing Can be Reported Under this Policy?
An individual covered by this policy (as set out in the Introduction) may make a disclosure of information if they have reasonable grounds to suspect any of the following types of misconduct in relation to DG:
- illegal conduct, such as theft, dealing in or use of illicit drugs, violence or threatened violence or criminal damage to property;
- dishonest, fraudulent or corrupt conduct, such as offering or accepting a bribe, money laundering or misappropriation of funds;
- financial irregularities;
- conduct that represents a significant danger to the public, including public health and safety or environmental damage;
- conduct that represents a significant risk to the stability of, or confidence in, the financial system;
- engaging in or threatening to engage in detrimental conduct against someone who has or is suspected to have made a disclosure under this policy; and
- any other improper state of affairs or circumstances.
Misconduct does not need to amount to a breach of the law to be covered under this policy.
A disclosure may still be protected under this policy, even if it turns out to be incorrect. Individuals are encouraged to make reports, even if they do not have all the details, however, individuals must not make deliberately false reports.
5. Personal Work-related Grievances
Disclosures solely related to a personal work-related grievance do not qualify for protection under the Act or this policy.
Personal work-related grievances are those that relate to the discloser’s current or former employment and which may have personal implications for the discloser, but do not have any significant implications for DG or do not relate to any disclosable matter (as described in OMM 28.4).
Some examples of personal work-related grievances are:
- an interpersonal conflict between the discloser or another employee;
- a decision about the engagement, terms and conditions of employment, transfer or promotion of the discloser;
- a decision to suspend or terminate the engagement of the discloser, or otherwise discipline the discloser;
- a decision that does not involve a breach of workplace laws.
Disclosure of a personal work-related grievance will be protected if:
- it is a mixed report, including information about a disclosable matter as well as about a personal work-related grievance;
- DG has:
- seriously breached employment laws (to an extent punishable by imprisonment of 12 months or more);
- engaged in conduct that represents a danger to the public; or
- engaged in misconduct that goes beyond the discloser’s personal circumstances;
- the discloser suffers from or is threatened with detriment for making a disclosure; or
- the discloser seeks legal advice or representation about the operation of the whistleblower protections under the Act.
Individuals with personal work-related grievances that are not covered by this policy are encouraged to raise their grievances with their manager or Human Resources.
6.Who Can Receive a Disclosure?
To be protected under this policy, disclosures must be made directly to an eligible recipient. At DG, this means disclosure may be made to one of its Directors, Company Secretary, Principals, Regional Managers, Branch Managers, Financial Controller, General Counsel, Human Resources Manager and Health Safety and Wellbeing Manager. Internal and external auditors of DG are also eligible recipients.
Disclosures will be protected under this policy if they are made to an external legal advisor for the purpose of obtaining legal advice or representation about the operation of the whistleblowing protections under the Act. This is the case even if the legal advice is to the effect that the disclosure is not an eligible disclosure.
Disclosers may make disclosures directly to Commonwealth regulatory bodies authorized by law to receive disclosures (including the ATO, ASIC, and APRA), without first making an internal disclosure to a DG eligible recipient.
Public interest or emergency disclosures to a parliamentarian or journalist are also protected under the Act. There are strict criteria for the making of a public interest or emergency disclosure and legal advice should be sought before making such a disclosure. These criteria include, that a disclosure has previously been made to ASIC, APRA or other prescribed body, a written notice has been provided to the regulatory body before disclosing to a parliamentarian or journalist and, in the case of a public interest disclosure, at least 90 days have passed since the initial notice to the regulatory body.
DG encourages disclosers to make disclosures internally in the first instance. This will enable DG to identify and address any wrongdoing as soon as possible.
7. How to Make a Disclosure
Disclosures may be made in person or by email to any of the eligible recipients set out in OMM 28.6.
Disclosures may also be made by post to:
Douglas Partners Pty Ltd
PO Box 472
West Ryde NSW 1685
Disclosures may be made anonymously and will still be protected by the Act. Disclosers may remain anonymous throughout the investigation and after it is concluded. DG will communicate with a discloser using a pseudonym, if they wish to remain anonymous. A discloser may refuse to answer questions they feel could reveal their identity at any time. A discloser who wishes to remain anonymous should maintain ongoing two-way communication with DG, so that DG may ask follow-up questions and provide feedback to the discloser.
8. How Whistleblowers Are Protected
Confidentiality (identity protection)
DG is legally required to and will take all reasonably necessary measures to protect the identity of the discloser. DG will:
- where possible, liaise with the discloser to identify aspects of the disclosure that could identify the discloser;
- redact documents to remove the personal information of the discloser;
- refer to the discloser in a gender-neutral context; and
- ensure disclosures are handled and investigated by qualified staff.
DG may disclose the identity of the discloser:
- to ASIC, APRA or a member of the Australian Federal Police;
- to a legal practitioner for the purpose of obtaining legal advice or representation about the whistleblower provisions of the Act;
- to a person prescribed by the regulations; or
- with the consent of the discloser.
DG may disclose the information contained in a disclosure with or without the discloser’s consent if:
- the information does not include the discloser’s identity;
- DG has taken all reasonable steps to reduce the risk of the discloser being identified from the information; and
- It is reasonably necessary for investigating the issues raised in the disclosure.
It is illegal for a person to identify a discloser or disclose information that is likely to lead to the identification of a discloser otherwise than as permitted above.
A discloser may lodge a complaint with the General Counsel or any other eligible recipient about a breach of confidentiality. Complaints may also be lodged with a regulator such as ASIC, APRA or the ATO, for investigation.
Protection from Detrimental Acts or Omissions
It is illegal for a person to:
- engage in conduct that causes detriment to a discloser in relation to the disclosure; or
- make a threat to cause detriment to a discloser or other person in relation to a disclosure.
Some examples of illegal detrimental conduct are:
- dismissal of an employee;
- alteration of an employee’s position or duties;
- discrimination between an employee and another employee of DG;
- harassment or intimidation of a person;
- damage to a person’s reputation;
- damage to a person’s property;
- harm or injury to a person, including psychological harm;
- damage to a person’s business or financial position; or
- any other damage to a person.
Some examples of actions that are not detrimental conduct are:
- administrative action that is reasonable for the purpose of protecting a discloser from detrimental conduct, such as moving a discloser who has made a disclosure about their work area to another office to prevent them from detriment; and
- managing a discloser’s unsatisfactory work performance, if the action is in line with DG’s performance management framework.
Compensation and Other Remedies
A discloser (or any other employee or person) can seek compensation or other remedies through the courts if:
- they suffer loss, damage or injury because of a disclosure; and
- DG failed to take reasonable precautions and exercise due diligence to prevent the detrimental conduct.
Individuals are encouraged to seek independent legal advice if they are considering seeking compensation or other legal recourse through the courts.
Civil, Criminal and Administrative Liability Protection
A discloser is protected from any of the following in relation to their disclosure:
- civil liability (eg any legal action against the discloser for breach of an employment contract, duty of confidentiality or another contractual obligation);
- criminal liability (eg attempted prosecution of the discloser for unlawfully releasing information, or other use of the disclosure against the discloser in a prosecution (other than making a false disclosure)); and
- administrative liability (eg disciplinary action for making the disclosure).
A discloser will not be granted immunity for any misconduct they have engaged in that is revealed in their disclosure.
All the protections described in section 8 apply whether the disclosure is made internally, to a legal practitioner or to a regulatory or other authorized external body.
9. Support and Practical Protection for Disclosers
DG will protect the confidentiality of the discloser by:
- observing the identity protection measures described in Section 8;
- securely storing all paper and electronic documents and other materials relating to disclosures;
- limiting access to information about a disclosure to those directly involved in managing and investigating it;
- ensuring that communications and documents relating to the investigation of a disclosure will not be sent to an email address or printer that can be accessed by other staff not directly involved in the management of the investigation; and
- reminding each person who is involved in the handling and investigating of a disclosure that an unauthorised disclosure of a discloser’s identity may be a criminal offence.
Disclosers should be aware, that in practice, people may be able to guess their identity if:
- the discloser has previously mentioned to other people that they are considering making a disclosure;
- the discloser is one of a very small number of people with access to the information disclosed; or
- the disclosure relates to information that a discloser has been told privately and in confidence.
Protection from Detrimental Acts or Omissions
DG will take practical steps to assess and control the risk of detriment to a discloser.
If a risk of detriment to a discloser is identified, DG may take appropriate interim measures to safeguard the interests of a discloser during the course of an investigation. These measures may include, temporary reassignment, transfer to another office or function for which the discloser is qualified, or placement on special leave with full pay, or other appropriate measures on a case-by case basis – with the consent of the discloser.
10. How DG will investigate disclosures made under this policy
Handling a Disclosure
DG will acknowledge receipt of a disclosure made directly to an eligible recipient promptly upon receipt, unless the disclosure is made anonymously and the discloser cannot be contacted.
DG will fairly and objectively assess and consider all disclosures made to eligible recipients.
As soon as reasonably practicable, DG will determine whether the disclosure will be formally investigated. DG will have regard to matters including the amount of information provided and whether the matters disclosed qualify for protection under this policy.
Investigating a Disclosure
If a disclosure requires investigation, DG will, as soon as reasonably practicable, determine how the investigation will be carried out. DG may consider:
- the nature and scope of the investigation;
- the person(s) within and/or external to DG that should lead the investigation;
- the nature of any technical, financial or legal advice that may be required to support the investigation;
- whether the investigation should be undertaken jointly with an external investigation firm (eg when additional specialist skills or expertise are required); and
- the timeframe for the investigation, including the following key steps (which may vary depending on the nature of the disclosure):
- conduct of confidential witness interviews;
- collection of documents and information;
- analysis of evidence (including by independent experts);
- making findings and recommendations;
- reporting of findings.
Investigations will be objective, fair and independent and will preserve the confidentiality of the investigation. To ensure fairness and independence, investigations will be independent of the discloser, the individuals who are the subject of the disclosure and the department or business unit involved.
Appropriate records and documentation will be kept for each step in the investigation process.
Without the discloser’s consent, DG cannot disclose information that is likely to lead to the identification of the discloser as part of the investigation process, unless:
- the information does not include the discloser’s identity;
- DG removes information relating to the discloser’s identity or other information that is likely to lead to the identification of the discloser (eg name, position, title and other identifying details); and
- it is reasonably necessary for investigating the issues raised in the disclosure.
The investigation process may be limited if DG is unable to contact the discloser (eg if a disclosure is made anonymously and the discloser has refused to provide or has not provided a means of contacting them.)
Keeping a Discloser Informed
DG will provide disclosers regular updates on the status of the investigation, if the discloser can be contacted, (including through anonymous channels). The frequency and timeframe of updates will vary depending on the nature of the disclosure, but will at a minimum be given:
- upon receipt of the disclosure, to acknowledge receipt;
- when the investigation process has begun;
- while the investigation is in progress; and
- after the investigation has been finalized.
How the Investigation Findings Will Be Documented, Reported Internally and Communicated to the Discloser
After the investigation is finalised, the person leading the investigation will report to the General Counsel in writing. As far as reasonably practicable and appropriate in the circumstances, the report should exclude information that reveals the identity of the discloser and persons mentioned in the report. The method for documenting the report will depend on the nature of the disclosure.
The General Counsel will be responsible for tabling investigation reports at meetings of the DG Risk Committee at regular intervals, to ensure the Board have full visibility of whistleblower reports and material incidents. The General Counsel will determine whether any matters raised in a report need to be considered by the Board. All reporting of investigations will maintain the confidentiality of the discloser.
Where an investigation identifies a breach of DG’s internal policies or procedures, appropriate disciplinary action may be taken. This may include termination or suspension of the employment or engagement of the person(s) involved in the breach.
If the report finds that there has been a suspected or actual breach of the law, DG may refer the matter to the relevant legal authority.
Where it is appropriate to do so, the discloser will be notified of some or all of the findings of the investigation. There may be circumstances where it may not be appropriate to provide details of the outcome of the investigation to the discloser. The method for notifying the discloser of the findings (eg in writing or verbally) will depend upon the nature of the disclosure.
11. Ensuring Fair Treatment of Individuals Mentioned in a Disclosure
DG is committed to ensuring the fair treatment of individuals who are mentioned in a disclosure, including those who may be the subject of a disclosure.
The following measures and mechanisms are in place to ensure fairness to individuals mentioned in disclosures:
- disclosures will be handled confidentially, except in the circumstances set out in Section 8;
- each disclosure will be assessed and may be the subject of an investigation;
- the objective of an investigation is to determine whether there is enough evidence to substantiate or refute the matters reported;
- when an investigation needs to be undertaken, the process will be objective, fair and independent;
- an employee who is the subject of a disclosure will be advised about the subject matter of the disclosure as and when required by principles of natural justice and procedural fairness and prior to any action being taken – for example, if the disclosure will be the subject of an investigation; and
- an employee who is the subject of a disclosure may contact DG’s Employee Assistance Program for further support and counselling.
This policy is published in DG’s Office Management Manual to be available to all officers and employees and also has been disseminated via email. It is publically available at https://www.douglaspartners.com.au/
13. Further Information
For further information about how this policy works, what it covers and how a disclosure might be handled, please contact the General Counsel or a Director, or an independent legal adviser.
Last updated 19 December 2019 (OMM 28 Ed5/Rev0)