BNZ proposal to force whistleblower out was retaliation, authority rules

A BNZ employee has won her lengthy court battle to prove the bank proposed making her redundant because she blew the whistle on a colleague.

The Employment Relations Authority (ERA) today found in Melissa Bowen's favour in the first case of its kind, ruling BNZ proposed making her redundant as retaliation after she raised concerns about another employee.

There were also serious flaws in its redundancy process when Bowen was ultimately made redundant in 2018, the ERA found.

Bowen’s 30-year career in banking was destroyed and she has now spent years fighting for justice against the might of one of Aotearoa’s biggest banks.

Bowen made eight claims in the ERA case, based on personal grievances, including for being subjected to a proposed restructure in retaliation to her whistleblowing.

In its ruling today, it found BNZ had unjustifiably proposed to disestablish Bowen’s role in retaliation after she made what’s known as a “protected disclosure” in 2016 – in other words, a whistleblowing complaint - including finding the proposed restructure had no credible commercial basis.

And BNZ was found to have failed to act in good faith in respect of one of the claims. A staff member who was the subject of the claim was “misleading and deceptive” in dealing with Bowen.

BNZ had conflicting policies and processes on how employees could make a protected disclosure, the ruling said.

The ERA member who heard the case noted it wasn’t their role to determine if there was any basis for the protected disclosure, and therefore did not make any comment on the merits of the disclosure.

Bowen had also claimed personal grievances for bullying, threats of dismissal for breach of confidentiality, a second claim of retaliation, breach of the bank’s whistleblowing policy and a breach of contract. The ERA found these claims did not succeed.

Between 2018 and 2023, Bowen made a number of unsuccessful legal challenges which delayed her case being heard in the ERA. These challenges included going to the Human Rights Commission for guidance and applications to transfer her case to the Employment Court.

Bowen reacted to the ERA decision, tears welling in her eyes as she told 1News of the impact of her battle for justice.

“I feel a little bit numb, but very, very jubilant,” she said. “It’s something the bank gaslit me about for eight years, denying I made a protected disclosure.

“For a long time I wasn't able to talk about it, I wasn't allowed to and I wanted to protect the integrity of the investigation. Now I am able to talk about it, it's quite hard because it's been a very long campaign… gaslighting me for eight years,” she says with her voice shaking.

Her ordeal began in 2016, when she complained about alleged serious wrongdoing by a senior BNZ manager.

"I thought it'd be dealt with promptly, I never anticipated this,” the Auckland mother of three says in her first public interview.

Soon after she made that complaint, a “change proposal” was presented, to potentially make her redundant.

Bowen says she thought she was doing the right thing, as required to in her employment contract, by raising her serious concerns about the behaviour of a senior manager. She relied on the bank’s code of conduct because there was no clear process.

Melissa Bowen’s lawyer, barrister Michael O’Brien, says the ruling is unprecedented.

“It is the first time in New Zealand that a substantive finding of retaliation against a whistleblower has been made under the Protected Disclosures Act 2000. This will also help inform the application of the replacement Protected Disclosures (Protection of Whistleblowers) Act 2022,” he said.

“The implications of this decision on other organisations that attempt to punish people who choose to do the right thing by reporting serious wrongdoing in their workplace will be significant.”

He described his admiration for Bowen’s stoicism and her determination to fight the bank, against all odds.

And in turn, she describes the actions of the Australian owned bank in trying to wear her down as “horrific”.

“Just unbelievable, they haven’t treated me as a human being… It was quite hard to reconcile why they would do that, it's very hard to understand how people have behaved," Bowen said.

In 2000, New Zealand was one of the first countries to introduce dedicated whistleblowing legislation, to protect people who report their concerns of serious wrongdoing.

Unlike many other countries, it applies to both the public and private sectors. It’s aimed at allowing the disclosure and investigation of serious wrongdoing in the workplace and crucially, to protect those who report concerns.

A key part is any whistleblower, or employee, who makes a “protected disclosure” is entitled to confidentiality and must not face any type of retaliation by employers. That includes dismissal or any changes to their employment that disadvantages them, which means an employee has a personal grievance under the Employment Relations Act.

The Protected Disclosures Act was updated in 2022, to make it clearer for employers and employees. This case falls under the pre-2022 Act.

A series of questions have been put to BNZ regarding the judgement and their handling of the case. But a spokesperson said they would not be making any comment.

For Bowen, there’s finally hope following the decision.

“I hope that it shows you can’t get away with this sort of behaviour. There’s a reason we have the Protected Disclosure Act, to protect the integrity of our banking systems, our regulatory environment, and to protect the people who are trying to do the right thing and, yes, I would like to think these organisations really wake up to their obligation to comply with that,” she says.

She wants the bank’s executive to be held to account, and to receive compensation for what she’s lost. The issue of costs in the ERA are yet to be determined.

She hasn’t been able to work, and the trauma of this case has made it a tough fight. She’s told very few people about her battle over the years, fighting quietly and not wanting to share the burden. Key support people have stood by her every step of the way.

The fight for justice will continue, the fight for eight lost years of her life and employment. The focus for now is on quiet contemplation and a tiny celebration, she says.

And the fight for others. Her focus will now be on working with those who’ve found themselves in a similar position.

Bowen says she never wanted to set an example, but now she has, the only good that can come out of it is that others don’t have to fight like she has for justice.