Say you are an employee who blew the whistle on improper conduct. What can you disclose as a whistleblower and protections are you accorded under the law? Here’s what you need to know about being a whistleblower.
First and foremost, what is a whistleblower? According to s2 of the Whistleblower Protection Act 2010 (“WPA”), a whistleblower is anyone who makes a disclosure of improper conduct to the enforcement agency under s6. For context, s2 WPA defines “improper conduct” as any conduct which if proved, constitutes a disciplinary offence or a criminal offence while “enforcement agency” is defined as any ministry, department, agency or other body at the federal, state or local government which have powers of investigation and enforcement under any existing law. For example the police, MACC, JPJ, Immigration, Customs, Local Authorities and others.
Next, with reference to s6(1) WPA, a whistleblower may disclose of any improper conduct to any enforcement agency as long as they have reasonable belief that any person has engaged, is engaging or is preparing to engage in improper conduct. However, this is limited to matters not specifically prohibited by any written law. For example, whistleblowers cannot make disclosures on information that fall under secrecy laws such as the Official Secrets Act (OSA) 1972, Capital Markets and Services Act 2007 and Section 203A of the Penal Code.
Also, s6(2) WPA clarifies that a whistleblower may disclose improper conduct although the person making the disclosure is not able to identify a particular person to which the disclosure relates; although the improper conduct has occurred before the commencement of this Act; in respect of information acquired by him while he was an officer of a public body or an officer of a private body; or of any improper conduct of a person while that person was an officer of a public body or an officer of a private body.
Knowing this, whistleblowers are accorded the following three limbs of protections as per s7(1) WPA:
- Protection of confidential information;
- Immunity from civil and criminal action; and
- Protection against detrimental action.
These protections are further elaborated upon in s8, 9 and 10 of the WPA.
As per s8 WP, anyone who makes or receives a disclosure of improper conduct, or obtains confidential information in the course of investigation into such disclosure must not disclose such confidential information. No authority may order for the disclosure of said information. Should there be evidence which will lead to the discovery of the whistleblower, the authority examining the evidence shall conceal the relevant passages necessary to protect the whistleblower.
Pursuant to s9 WPA, a whistleblower will not be subject to any civil or criminal liability or any liability arising by way of administrative process, including disciplinary action, and any action, claim, or demand taken or made against the whistleblower, for making a disclosure of improper conduct. It should be noted that the way this section is phrased also includes liability arising from internal actions taken by a corporation or organisation a whistleblower.
According to s10 WPA, a whistleblower and any person related to or associated with the whistleblower is protected from detrimental action in reprisal for a disclosure of improper conduct. As such, whistleblowers may rest easy as the protection clearly extends to cover the safety of these related or associated people is an important consideration for a whistleblower to blow the whistle. This section may be read with may be read with s2 WPA whereby “detrimental action” includes action causing injury, loss or damage; intimidation or harassment; interference with the lawful employment or livelihood of any person, including discrimination, discharge, demotion, suspension, disadvantage, termination or adverse treatment in relation to a person’s employment, career, profession, trade or business or the taking of disciplinary action; and threats to take any of the aforementioned actions.
Although whistleblowers are accorded three limbs of protection under s7(1), these protections are not absolute as illustrated by s11 WPA whereby an enforcement agency can revoke any whistleblower protection if:
- The whistleblower himself participated in the improper conduct disclosed;
- The whistleblower wilfully made a false material statement in his disclosure of improper conduct;
- The disclosure of improper conduct is frivolous or vexatious;
- The disclosure of improper conduct principally involves questioning the merits of government policy;
- The disclosure of improper conduct is made solely or substantially with the motive of avoiding dismissal or other disciplinary action; or
- The whistleblower, in the course of making the disclosure or providing further information, commits an offence under the WPA.
In short, whistleblowers are accorded protection of confidential information, immunity from civil and criminal action and protection against detrimental action. However, they should keep in mind that these protections are not absolute and should thus keep the abovementioned exceptions in mind when blowing the whistle on improper conduct.
