Whistleblower wins $5000 compo from CEO

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Whistleblower wins $5000 compo from CEO

A CEO has been ordered to pay $5000 compensation to a 'whistleblower' who was victimised after disclosing information about her employer.

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A CEO has been ordered to pay $5000 compensation to a 'whistleblower' who was victimised after disclosing information about her employer.

A specific corporation statute allowed Alexandra Walsh to successfully bring a claim against the CEO. She was victimised after pointing to questionable practices by the CEO and the Umoona Tjutagku Health Service Aboriginal Corporation (UTHSAC).

The Federal Court (Justice Charlesworth) ruled on a claim relating to victimisation in contravention of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) [CATSI Act].

The claim


The claim focused on disclosure of information and whether the discloser/employee had reasonable grounds to suspect the information may indicate contravention of the Act by the corporation’s CEO, Priscilla Larkins.

It was alleged the act of victimisation by the CEO was comprised (in part) of a threat of harm to Ms Walsh's spouse and that this threat caused her emotional distress.

The CEO had terminated the employment of Ms Walsh when she raised the allegations of improper conduct.

Decision


Ms Walsh failed to prove economic loss as a consequence of the victimisation, but compensation for non-economic loss was awarded.

The court noted that unfair dismissal proceedings were previously decided in her favour. Subsequent claims for compensation in relation to dismissal were prevented by s725 of the Fair Work Act 2009 (Cth).

The legislation


The CATSI Act provided for the incorporation, registration and regulation of corporations known as “Aboriginal and Torres Strait Islander Corporations”. 

Section 1-30 established the Office of the Registrar of Aboriginal and Torres Strait Islander Corporations (ORIC), a regulatory body with responsibilities affecting the administration and accountability of corporations governed by the Act. 

Part 10-5 is titled “Protection for whisteblowers”. It established a regime for the protection of persons who make certain disclosures. A disclosure will qualify for protection under Pt 10-5 if it meets the criteria specified. Section 469-5 prohibits the victimisation of persons who make protected disclosures.

The legislation provides, in part, ‘that a person (the first person) contravenes this subsection if (a) the first person makes to another person (the second person) a threat to cause any detriment to the second person or to a third person...’.

Proceedings against corporation barred

UTHSAC contended that the proceedings against it were barred by the operation of s725 of the FW Act or, alternatively, that s725 constitutes a complete defence to the action against it.

The court ruled that the general rule in s725 of the FW Act operated so as to prevent the discloser, Ms Walsh, from making the claim pleaded against UTHSAC in this proceeding. 

The evidence


Each of the expert medical witnesses called by the applicant, Ms Walsh,  confirmed that, in assessing whether she remained unfit for work, it would be material to consider how Ms Walsh conducted herself as a self-represented litigant in these proceedings. 

The court agreed and found that Ms Walsh showed she was not unfit for work: ‘In all of the circumstances, even if Ms Walsh was at some time incapacitated from work, I am not satisfied that she remained impacted at the time of the trial, at least in terms of the capacities and skills she demonstrated in the presentation of her case.’

Evidence


Ms Walsh bore the onus of proving all of the essential elements of her claim to the civil standard of proof.

Mrs Larkins put Ms Walsh to proof on all aspects of her allegation that she had made protected disclosures, including on the question of whether she acted in good faith. A large part of the trial was consumed by that issue.

The court found in favour of the employee in relation to various evidential issues. For example, unauthorised payments to a staff member in relation to a shade cloth and a Toyota vehicle were in evidence.

The court also did not accept the CEO’s submission to the effect that Ms Walsh’s stated concerns about nepotism were neither genuine nor reasonably grounded in reality. 

The court noted Mrs Larkins subjectively believed that Ms Walsh was a 'troublesome busybody.’

Investigation of allegations flawed


The court noted it was concerned not with the truth of the substantive facts relied upon by Mrs Larkins to justify the dismissal; rather, but rather with the acts and omissions of Mrs Larkins when investigating and making the findings she relied upon.

Part of the evidence against Mrs Larkins was that she said to Ms Walsh: ‘I’m going to get your husband killed in gaol.’

Unfit for work


The employee/applicant remained unfit for work because of stress caused by the contraventions.

The applicant suffered from an adjustment disorder with depressed and anxious moods and an adjustment disorder with mild anxiety and depression (caused by the contraventions).

Compensation issues


The claim for compensation founded in personal injury and related economic loss was not made out. However, the court found that as a result of the CEO contravention, Ms Walsh suffered considerable emotional upheaval. She experienced stress, intimidation, isolation and insult.

The distress suffered by Ms Walsh was compensable under s469-10 of the CATSI Act, whether or not it consisted of or compounded a personal injury. 

The award of compensation was enforceable against, and only against, the CEO, Mrs Larkins, personally.

Damages – purely compensatory


In assessing damages, ‘it is to be borne in mind that the award to be made is purely compensatory.’

The court concluded: ‘Considerations of deterrence or punishment were irrelevant. Moreover, it is necessary to make the assessment in circumstances where there were a number of additional factors bearing on Ms Walsh’s emotional state at the time. The award of damages against Mrs Larkins is to represent the degree to which the particular contravening conduct impacted upon Ms Walsh in all of the circumstances.’

Damages were assessed at $5000 plus pre-judgment interest in the amount of $1583.

The court concluded: ‘The act proven against Mrs Larkins was not pleaded to be an act for which UTHSAC might be liable to compensate Ms Walsh, whether in accordance with principles of vicarious liability or otherwise. The award of compensation is enforceable against, and only against, Mrs Larkins personally.’

The bottom line: Where whistleblower protection is built into legislation, those tasked with the role of investigating complaints are obliged to carry out the procedure in a fair and reasonable manner. Failure to do so can result in compensation being awarded against the individuals responsible for a proper investigation.

Walsh V Umoona Tjutagku Health Service Aboriginal Corporation (ICN 7460) (No 2) [2017] FCA 852 (28 July 2017)
 
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