Introduction
We lives in a complex world, the
evidence is that our world is full of humans. Every day, decisions are made
that can affect our health, safety, economic and human rights. Some of these
decisions are made for the worst reasons. They are made by the corrupt, the
incompetent or the lazy. Accidents happen or corruption flourishes because
employees who know about wrongdoing are afraid to say anything in fear of
losing their jobs.
The Objectives:
The objective of the paper in your hands
is to consider how far we have advanced towards the consciousness of a
significant ethos of revelation. The consciousness of a significant ethos of
revelation requires an empowering whistleblowing legal framework, meaningful
implementation and enforcement within all organisations especially in the
Public Sector Entities, bringing up the practices and protections provided in
terms of the laws essentially and as well as the social culture which yield
respect to the whistleblower.
Before getting in depth in it let us clear in our
mind that what actually is Whistle Blowing?
·
US academics – Marcia P.
Act
of disclosure of illegal activities.
·
UK academics –Guy Dehn
Act
of disclosure to reduce and remove risks.
·
Australian academics–– Peter Jubb
Act
of disclosure to rectify a wrongdoing.
·
Oxford English Dictionary
Bringing
an activity to a sharp conclusion as if by the blast of a whistle.
·
UK Committee on Standards in Public
Life
Raising
a concern about malpractice within an organisation or through an independent
structure associated with it.
·
Chambers Dictionary
Giving
information (usually to the authorities) about illegal or underhand practices.
·
US, Brewers Dictionary
Exposing
to the press a malpractice or cover-up in a business or government
(origins)
Police officer summoning public help to apprehend a criminal; referee stopping
play after a foul in football.
Here
actually we are talking about an effective system in place that allows ways of
disclosure by any person of any information about misconduct, corruption,
misuse of powers, misappropriations or illegal activity etc. which may leads
towards some sort of protection as well as some kind on incentives to the
whistle blower in order to promote accountability.
There are few countries in the world which
have adopted Whistle Blowing National Laws a few are as under:
·
US -
Whistleblower Protection Act
·
UK - Public
Interest Disclosure Act
·
Canada - Public Servants Disclosure Act
·
Japan -
Whistleblower Disclosure Act
·
New Zealand -
Protected Disclosures Act
·
Romania - Act on
the Protection of Whistleblowers
We also have following United Nations
International Instrument on Whistle Blowing:
·
Convention
against corruption in 2003
·
Convention
against corruption in 2005
·
140 countries
have signed for as of 2011
Whistleblowing is relevant to all
organisations and all people, not just those few who are corrupt or
criminal. This is because every business
and every public body faces the risk of things going wrong or of unknowingly
harboring a corrupt individual. Where such
a risk arises, usually the first people to realize or suspect the wrongdoing will
be those who work in or with the organisation.
Yet these people, who are best placed to sound the alarm or blow the
whistle, also have most to lose if they do.
"There are obvious tensions,
public and private, between the legitimate interest in the confidentiality of
the employer's affairs and in the exposure of wrong. The enactment, implementation
and application of the "whistleblowing" measures and the need for properly
thought out policies in the workplace, have over the last three years, received
considerable publicity from various quarters, including the valuable activities
of an independent charity, Public Concern at Work, established in 1993 and
experienced in providing assistance to both employers and employees."
Lord Justice
Mummery - giving the judgment of the Court of Appeal - in its first consideration
of the Public Interest Disclosure Act. (ALM
Medical Service v Bladon (2002) IRLR 807)
The
dilemma
In practical terms, if someone is
concerned about corruption or serious wrongdoing in or by an organisation, they
have three options. These are
• To stay silent.
• To blow the whistle internally or
with the responsible person.
• To blow the whistle outside to the
authorities or the media.
Silence
Silence is the option of least risk
both for the individual worker and for a responsible firm which comes across
corruption. It will be attractive for
many reasons. The whistleblower will
realise that his or her facts could be mistaken or that there may be an
innocent explanation. Where colleagues or competitors are also aware of the
suspect conduct but stay silent, the whistleblower will wonder why he or she
should speak out. In organisations where
labour relations are adversarial and in cultures where corruption is common,
the whistleblower is likely to assume that he or she will be expected to prove
that the corrupt practice is occurring, rather than see those in authority
investigate and deal with the matter. Even though he or she has no control over it,
the whistleblower may feel responsibility for any action that may be taken against
the wrongdoer. Finally, unless the
whistleblower believes there is a good chance that something will be done to
address the wrongdoing, it is almost inevitable that he or she will stay silent.
Even if he or she thinks the alarm
should be sounded, the whistleblower will want to consider his or her private
interests before taking action. Without
reassurance to the contrary, the whistleblower will fear reprisals be it
harassment or dismissal. The
whistleblower may also suspect (rightly or wrongly) that the corruption
involves, implicates or is condoned by more senior people in or outside the
organisation, in which case he or she will fear the matter will be covered
up. Even where these obstacles are
overcome or reduced, the whistleblower will fear that he or she will be
labelled as disloyal by the generality of colleagues whose respect and trust
the whistleblower may want or need in future.
The results of this culture of silence
are that:
·
responsible
employers are denied the opportunity to protect their interests;
·
unscrupulous
competitors, managers or workers are given reason to believe that ‘anything
goes’;
·
society focuses
more on compensation and punishment than on prevention and deterrence.
Problems in
whistleblowing
Whistleblowing always involves two
parties with opposing rights and interests; on the one hand there is the
whistleblower who has a right to equality, freedom of expression and fair
labour practices; and on the other hand there is the organisation against which
an allegation is made which has rights to a reputation and to loyalty from
staff.
Wind of Change
There is growing acceptance to
whistleblowing. With the changing nature
of employment, globalisation and the increased flow of information, there is
also a recognition that the traditional approach of trust and confidentiality
in the workplace cannot be relied upon to operate as it did through much of the
20th century. While trust and
confidence is of critical importance in any community or organisation, to be
effective it cannot be blind or unquestioning.
Whistleblowing cultures which emphasise internal reporting are a means
by which the abuse of trust and confidence can be checked and by which
asymmetrical accountabilities of those within the workplace can be understood
and developed. If the organisation is prepared to promote and implement such a culture,
any risk of it being hijacked by petty campaigns will be minimised, if not
removed.
Whistleblowing as a means to deter
wrongdoing, promote transparency and good governance, underpin self-regulation
and maintain public confidence. It is
the approach which has been put on a legislative footing in the UK and in South
Africa in recent years.
ESSENTIALS
Essential 1
- Create an Anti-Fraud Policy
·
Outline an anti-fraud
culture
·
Outline the need
for accountability
·
Outline reporting
mechanisms
·
Outline the
owners of the process
·
Outline the
authority of these owners
Essential 2
- Create Case Management Framework
·
Outline incidents
criteria
·
Outline incidents
level
·
Outline incident
response teams
·
Outline
investigative process
·
Outline evidence
retention timeline
Essential 3 -
Create a dedicated department
·
Legal experience
·
Forensics
Accounting experience
·
IT Forensics
experience
·
Fraud experience
Essential 4
- Get endorsements from the top
Essential 5
- Get endorsements from Clients
Essential 6
- Awareness, Awareness, Awareness!
·
The policy
·
Anti-fraud
culture
·
The department
Essential 7
- Investigate and Take Action
·
Investigate
incidents reported
·
Take action on
the incidents reported
Essential 8
- Protect the Whistle Blower
Essential 9
- Reward the Whistle Blower
Essential 10
- Encourage anonymity
Essential 11
- Assess and evaluate the system
·
Is it working
·
Is it yielding
the intended results
·
Are employees
comfortable using it
·
Are employees
using it
Five Factors
to Success
1. Protection
2. Reward
3. Taking Action
4. Showing Action
5. Confidentiality
Let’s Agree
·
That Fraud is
here to stay
·
That we need
whistleblowers
·
That we need
whistle blowing system
Recommendations
1. There is a need to develop a consolidated and
consistent whistleblowing framework that provides equal protection to all
whistleblowers and which imposes the same effective duties on organisations, in
both the public and private domains, to promote a culture of disclosure that
protects whistleblowers.
2. The law must be made comprehensive in the
provision of an expanded scope of protection.
3. It must draw all potential whistleblowers into
its protective field and allow disclosures to any person or agency that is able
to do something about the allegation concerned.
4. Organisations may be via Audit Committees must
be compelled and/or encouraged to proactively promote a culture of disclosure,
adopt more appropriate and expansive interpretations of the whistle blowing
related guidelines, and to be more pro-active and attentive to effective
implementation of obligations and protections provided by the guidelines at
least until it got legislative cover/security.
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