Thursday, April 28, 2011

The mistreatment of whistleblowers

Whistleblowers are still in danger, veteran journalist Laurie Oakes tells us in a keynote address at a recent press freedom dinner.  He is the latest in a long line of observers who point out the damage faced by people who try to bring wrongdoing by their organisations out into the open.
The retribution that whistleblowers face is widely documented.  C. Fred Alford and Roberta Johnson give many examples in their studies on whistleblowing. It would also be the conclusion of every member of the National Committee of Whistleblowers Australia (WBA). It is certainly the opinion of this observer after many years of working closely with whistleblowers.

The finding of a recent study, Whistleblowing in the Australian Public Sector that “only 22%” are mistreated is a misleading figure. The result is due to the structure of the study, and in particular, to the framing of the questions that were used.  The mistreatment figure was revised upwards to 30% of whistleblowers when the definition was changed to exclude people who were classifying personal grievances   as whistleblowing, but this redefinition still missed the point.  Those who suffer mistreatment are those who report a wrongdoing that is against the public interest. Such wrongdoings bring public disapproval on the organisation or on a senior officer. The retaliation rate then would appear to be much higher.

Companies, and public sector agencies, hire “hotline” whistleblowing companies to which employees can report wrongs. They are extremely successful in stopping fraud against the company or agency, with many studies from the big auditing companies confirming  their success. Price Waterhouse Cooper’s 2007 survey on economic crime, for instance, based on interviews in over 5,400 companies located in 40 countries, found that whistleblowers reported 43% of fraud identified in companies. It might not be fraud by the company; it could be an officer on the same level reporting, say, misuse of an office computer for personal use, even viewing pornography.  Or the private use of the company’s vehicles.

Companies do not retaliate against these employees – they thank them. They even reward them. The Australian public sector study however, does not distinguish between this type of whistleblowing and that of people reporting wrongdoing by senior staff of the organisation for company or agency benefit.

The public sector study was huge, and a major and valuable addition to knowledge on whistleblower practices. Eight surveys across the public sector, the largest of which sent out 23,177 questionnaires, to which 7663 public servants from 118 agencies responded. The contributors to the research were from fourteen state and the federal government ombudsman and anti-corruption agencies, along with five universities, lead by Griffith University.

Respondents to the large survey were asked whether they had observed in the last two years one or more of some 39 different wrongdoings. They were then asked to select one activity that they felt had been the most serious.

They were then asked if they had formally reported that activity to any individual or group and to whom. They chose from a list that included unions, a peer support officer, a counselling service or others who could possibly effect action.

Finally the respondent was asked if whether he/she was treated badly by management or co-workers. It was this question that showed “only 22%” was mistreated.

There area number of additional  reasons why the retribution rate will be higher for whistleblowers reporting an organisational wrongdoing that is against the public interest than it will be for the reporting of fraud or other wrongs against the company

1. The 39 wrongdoings included six Personnel and Workplace Grievances — racial discrimination, harmful working conditions, unfair dismissal, incorrect staff selection procedures, favouritism and bullying. These last two had the second and third highest reported rate of the 39 categories (p. 29). Bullying as a percentage of public employee wrongdoings that were reported is very high (30%). The six together add to over 85% of reports (p. 29). These results confirm the findings of members of Whistleblowers Australia (WBA) who receive many personal grievances each year, often described as whistleblowing. The complainants are very unhappy people, and do receive help from WBA.  But they are not whistleblowers in the sense that whistleblowing concerns issues of public concern.  More importantly, it is likely that a person reporting bullying, through any of the several conduits noted in the questionnaire, would not experience retaliation.  Imagine you are a union official who receives a complaint about bullying. How are you going to retaliate?

2. When personal grievances are excluded from the results the mistreatment percentage rises - to near 30%. However the six personal grievances are not the only personal complaints that employees make against a senior officer when complaining to WBA. Covering up poor performance is an additional complaint often stated by employees. .It has also an equally high reporting rate at 29.6%.”Acting against policy” or “Incompetent or negligent decision making” are others. They could be genuine but are also symptomatic of an employee who is unhappy with a senior officer, or with his/her employing organisation. If these complaints were separated out, the mistreatment rate would go even higher. In any case, if a staff member complains of these activities to a counselling officer, the counselling officer is unlikely to mistreat the complainant. Or even acquiesce to mistreatment.

3. 41% of respondents reported wrong doing “at or below my level”. ” (p. 66). Such reporting is unlikely to attract retaliation. It is extremely difficult for a person to mistreat a whistleblower who is at a higher organisational level. The whistleblower in any case is arguably not a whistleblower but a manager doing his/her duty. The manager may not even be in a direct line above the wrongdoer. Such a case may arise through the informal social networks that exist in large organisations enabling a more senior officer  to learn of a wrongdoing elsewhere in the organisation. They could then report it upwards

4 Case handlers and managers have responded that 48% of employees who report wrongdoing “often or always” experience problems (emotional, social, physical, or financial) and a further 42% state that it is “sometimes” the case (p.83).  These problems are not neces­sarily mistreatment or retribution, but it is difficult to see how these types of prob­lems could arise, if the whistleblower is treated “well or the same” by co-workers or management. Case handlers and managers involved in a whistleblowing incident would likely see the true picture behind whistleblowing for it is their task to manage such incidents. They would have no reason to exagger­ate their responses. The findings that 48% to 90% of whistleblowers experience problems, as observed by people with some formal responsibility for whistleblowing, suggests that the mistreatment of genuine public interest whistleblowers is much higher than the 22 -30% that have been stated .

5. Some whistleblowers have changed jobs shortly after their whistleblowing experiences and are therefore unlikely to experience retribution. They may have even left the service and not responded to the questionnaire.  The impact of leaving the service on questionnaire responses will be small, however, as resignation rates are low.

The wrongdoings listed are the same for every organisation that was surveyed. As simple observation tells us however, that virtually all disciplines and professions have additional sector specific wrongs. Educational institutions have plagiarism, research institutions produce bogus findings, hospitals face   a massive number or bio-ethical issues, public enterprises encounter the same range of marketing, advertising, and financial wrongs that are seen in the private sector. An employee that had experienced one of these wrongs may have responded to the questionnaire under a general heading – acting against policy for instance, or wasting funds. But we do not know how a person describing him/herself as observing a sector specific wrong, would have answered the question. This uncertainty  throws some further doubt on the results.

Three other factors could have influenced the responses to the questionnaire, and which raise additional questions regarding   the findings that were reached.

The survey covered all types of public sector agencies. The Commonwealth has virtually no whistleblower protection, however, so it is possible that the nature of whistleblowing and therefore of retaliation is different in the Commonwealth. People tend to blow the whistle only in areas where they fell relatively safe.

The report does not correlate the wrongdoing with the impact on the reputation of senior officials or the organisation itself.     Again drawing on WBA experience, if the whistleblowing accuses a senior official, or the whole organisation of a wrongdoing, the retaliation and efforts to cover up are very high

The report does not show the percentages of respondents from different agency groups. It is again WBA experience that whistleblowing issues arise more frequently in certain types of organisations – universities and other teaching institutes, police enforcement authorities, child welfare agencies for instance.  It would have helped to know if the proportion of these institutions in the sample were representative. If they were, the  conclusion could be drawn that the findings are representative. Otherwise there is doubt.

The conclusion can be drawn from the above arguments that the reported figure near 30% of whistleblowers who experience mistreatment is almost certainly understated. If we combine those who are not of public interest with those who reported themselves as whistleblowers when they were not, and unlikely to be retaliated against then, there is a much larger number of genuine public interest whistleblowers who did experience retaliation. Depending on the assumptions this retaliation figure may be as high as 60 - 80%.


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