Unprecedented ERA Judgement Finds BNZ Acted With Retaliatory Intent Against Whistleblower

26 June 2024 | Media Statement issued by Michael O’Brien, Barrister, on behalf of client Ms Melissa Bowen

Today’s landmark ruling by the Employment Relations Authority (ERA) that found the Bank of New Zealand (BNZ) acted with retaliatory intent when they unjustifiably terminated the employment of whistleblower, Ms Melissa Bowen, has been welcomed by Ms Bowen and her barrister Michael O’Brien.

Explaining the case, Mr O’Brien said: “At the heart of Ms Bowen’s claim is the orchestrated retaliatory campaign she was subjected to, and which resulted in her dismissal from the Bank, after she bravely made a protected disclosure to the Bank raising genuine concerns about illegal conduct at the BNZ.

“An additional claim has been filed against the National Australia Bank (NAB) and BNZ and NAB executives who Ms Bowen alleged breached their legal obligations and ruined Ms Bowen’s reputation by naming and outing her as a whistleblower without her consent.”

Mr O’Brien said the ruling by the ERA is unprecedented and highlights the serious consequences of the BNZ’s actions against Ms Bowen.

“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.

“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 said.

Mr O’Brien notes that eight years of battling for accountability and enduring the impacts of the retaliatory behaviour of BNZ executives has come at considerable personal cost for Ms Bowen.

“Melissa demonstrated remarkable courage and resilience by speaking up in good faith against a senior BNZ manager. Whistleblowing is a David vs. Goliath scenario and her refusal to bow down to BNZ’s full force is immensely brave, yet the continued victimisation and gaslighting from the bank’s executives has come at a significant personal cost for Ms Bowen, who has been diagnosed with PTSD.”

“For years, BNZ has denied that Ms Bowen made the protected disclosure in question. The ERA has emphatically found that Ms Bowen made that protected disclosure and was entitled to protection afforded by the Act, and that she was retaliated against. BNZ’s ongoing denials is both reprehensible and cruel.

“Ahead of making her protected disclosure and sending through hundreds of pages of evidence about the alleged serious wrongdoing, Ms Bowen sought assurances from BNZ’s Head of Employee Relations, that the bank would protect her from retribution.

“The Head of Employee Relations provided her a guarantee that she would be protected and told Ms Bowen that the bank does not punish people for raising their concerns. Devastatingly for Ms Bowen, that assurance proved to be hollow, said Mr O’Brien. “The retaliation and ultimate dismissal of Ms Bowen occurred despite BNZ’s CEO and board, and NAB’s CEO and the NAB Group Chairman, being squarely on notice of what was happening.”

“Ms Bowen’s written evidence, which is highlighted in the ERA determination, and summarised below, captures the essence of her experience as a whistleblower:

“I believe that the execution of the proposal to terminate my employment was a fait accompli….these people are appointed to be leaders, experts and professionals in the field; and I should have been able to rely on them for support and protection for raising my concerns.”

Mr O’Brien added “The ERA will now convene a hearing into remedies based on BNZ’s established breaches and Ms Bowen will be requesting the lifting of the interim non-publication orders that are currently in place to protect the identity of the BNZ executives involved.

“It is against the interests of justice that the bank executives who participated in the retaliation against Ms Bowen, and the outing of her as a whistleblower, continue to benefit from the cloak of non-publication.

“Notably, at the same time Ms Bowen was being punished by the BNZ for making a protected disclosure, its parent company National Australia Bank (NAB) was fronting up to the Australian Royal Commission answering claims of having a volatile, toxic, and Machiavellian culture. Ms Bowen expressly requested and authorised the disclosure of her experience to the Royal Commission, a request NAB refused.

“BNZ and NAB’s treatment of Ms Bowen has highlighted a huge power imbalance in whistleblowing that needs to be addressed if we want to encourage people to come forward with their genuine concerns. Ms Bowen hopes that the past eight years’ efforts to hold BNZ to account for their retaliatory actions will encourage organisations to improve their whistleblowing policies and procedures and deter the victimisation of people who have witnessed serious wrongdoing in their workplace,” said Mr O’Brien.

The Employment Relations Authority ruling found the BNZ:

• Unjustifiably terminated Ms Bowen’s employment in 2018 after she made a protected disclosure (whistleblowing complaint) to BNZ in early 2016 in relation to serious concerns about alleged serious wrongdoing by a senior BNZ manager,
• Failed to have clear and suitable whistleblowing policies and procedures for New Zealand (the Authority described it as “confusing”), choosing instead to rely on Australian centric policies parent company National Australia Bank’s (NAB),
• Had serious flaws in its redundancy process, and that the redundancy had no commercial basis and was clearly retaliatory.
• Failed to act in good faith and was misleading and deceptive.

While the ERA was not investigating whether the alleged serious wrongdoing at the centre of Ms Bowen’s concerns had occurred, it noted in paragraph 80: “I cannot set out the detail of the complaint, but I am satisfied that it alleged serious wrongdoing.”

Ms Bowen wishes to express her deep gratitude to Mr Rob Lewis (a former senior BNZ manager and previously CEO Of J.P. Morgan) for his support and advocacy for her over the past eight years.

Notes:

• Melissa Bowen was a former long-standing employee of the BNZ with over 30 years in the banking industry.
• In early 2016, Melissa made a protected disclosure to BNZ in relation to serious concerns about alleged serious wrongdoing by a senior manager at BNZ. An interim non-publication order is in place in relation to the subject of Ms Bowen’s protected disclosures.
• After what can only be classified as a “sham investigation” into the alleged serious wrongdoing (conducted by an HR Manager who was ill equipped to deal with the allegations of serious wrongdoing and who did not interview Ms Bowen or other named witnesses) concluded, the senior manager against whom the claims had been made tabled a redundancy proposal to disestablish Ms Bowen’s role and the role of another employee who had supported her whistleblowing complaint. Ms Bowen and the other employee then made a second protected disclosure.
• At the time these events transpired, the Chairman of BNZ was Mr Doug McKay (who retired on 31 May 2024) and the CEO was Anthony Healy. The CEO of NAB at the relevant time was Andrew Thorburn and the NAB Group Chairman was Ken Henry. The current Chairman of NAB is Philip Chronican.
• Ms Bowen has separate proceedings in the Employment Relations Authority against NAB and various individuals from BNZ and NAB who were involved in the publication of her identity as a whistleblower without her consent. NAB and those individuals are currently attempting to have those proceedings struck out, and an interim issue (the non-recusal of an Employment Relations Authority Member) is now before the Employment Court. The Court held an initial hearing of this preliminary matter on 14 May 2024 in Auckland and a judgment in that matter from Judge Smith is imminent. File EMPC 474/2023.
• Early in the litigation process, BNZ refused to extend interim non-publication to cover Ms Bowen and the second employee who supported her protected disclosure. There are currently interim non-publication orders in relation to current and former employees of BNZ and NAB in relation to the second protected disclosure. Ms Bowen intends to oppose those interim orders becoming permanent on the basis that it against the interests of justice that the individuals who perpetrated, and acquiesced to, the retaliation against Ms Bowen continue to benefit from the cloak of non-publication.
• Ms Bowen has been stigmatized by being unreasonably outed as a whistleblower and these events prematurely ended her distinguished career in banking and the wider finance sector.
• The Determination (Judgment) by the Employment Relations Authority (Member Peter van Keulen) is significant. It is the first time there has been a substantive finding of retaliation against a whistleblower under the Protected Disclosures Act 2000. That Act has now been replaced by the Protected Disclosures (Protection of Whistleblowers) Act 2022, but the Determination will help inform the application of the new Act.
• Whistleblowing legislation is an important piece of public policy. BNZ’s approach is a lesson on how not to treat a whistleblower. Ms Bowen’s hope is that by having had the courage to take on the Bank, and having the ERA make the pronouncements that it has, that other corporates in New Zealand will reflect and consider how whistleblowers should properly be treated, and those who have witnessed serious wrongdoing in their organisations will feel comforted by the fact that New Zealand law protects their speaking up.
• Serious wrongdoing is defined at s 3 of the former Act: s 3 PDA2000

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