Protected disclosure policy

The law in various jurisdictions has moved to protect people who ‘blow the whistle’ on serious wrongdoing within their organisation. Where jurisdictions in which we operate impose a higher standard, those local standards are deemed to be incorporated into and supplement this policy.

1. Purpose

This policy, aligned to Datacom’s values and Code of Conduct, provides an avenue for a variety of stakeholders to raise concerns and reassurance that their concerns will be addressed in a timely and confidential manner and they will be protected from reprisals or victimisation, in accordance with this Policy.

Datacom will treat any disclosure of serious wrongdoing properly, and you are encouraged to speak up to help us identify and deal with any of this type of behaviour.

2. Applicability

This policy applies to all current and former employees, directors, officers, contractors, and/or third parties engaged by Datacom or working at Datacom – and any family member of those people.

3. Policy

3.1. When can you make a disclosure under this policy?

You may make a report or disclosure under this policy if you are a current or former Datacom director, officer, employee, contractor, secondee, intern or volunteer, graduate, homeworker, supplier, consultant, adviser or other person who has business dealings with Datacom, and you have reasonable grounds to believe that someone has engaged in conduct related to Datacom which is:

  • Dishonest, fraudulent or corrupt
  • Illegal, unlawful or otherwise an offence (such as theft, dealing in or use of illicit drugs, violence or threatened violence, criminal damage to property)
  • Unethical (including any breach of Datacom’s policies such as the Code of Conduct)
  • Misconduct or an improper state of affairs
  • A serious risk or danger to public health, public safety or the health and safety of any individual
  • A serious risk or danger to the environment, maintenance of law (including the prevention, investigation and detection of offences, or the right to a fair trial) or the financial system
  • An unlawful, a corrupt, or an irregular use of public funds or public resources
  • Oppressive, unlawfully discriminatory or grossly negligent, or that is gross mismanagement, and is done (or is an omission) by a person performing (or purporting to perform) a function or duty or exercising (or purporting to exercise) a power on behalf of a public sector organisation or the Government.
  • A contravention of human rights, including modern slavery.

(“Reportable Conduct”)

You can still qualify for protection even if your disclosure turns out to be incorrect, as long as you have reasonable grounds for making the disclosure and are not acting in “bad faith”.

3.2. What is not covered by this policy?

To avoid doubt, Reportable Conduct does not include general or personal work-related grievances unless these separately qualify as Reportable Conduct. These grievances should be reported to your manager in accordance with our usual HR practice or referred to a member of the people and culture team.

3.3. How do you make a protected disclosure?

To qualify for protection under the law, unless it is an exception as noted below, you must make a disclosure of Reportable Conduct to an “eligible recipient”, who are described in this section.

You may disclose any Reportable Conduct to a Whistleblower Protection Officer as listed below:

If you are unable to use any of the above reporting channels, or feel uncomfortable doing so, you can disclose to any member of the Group Leadership Team (GLT), the Group CEO or Group CFO, or any member of the Legal & Commercial Team (Legal_CommercialTeam@datacom.co.nz ).

If you do not feel comfortable making an internal report, then you can contact the Chair of the Audit Committee of the Board, Mr Chris Day or any other Board member.

You may also report any Reportable Conduct to our auditors, an external lawyer or to any regulator such as the Financial Markets Authority in New Zealand, or the Australian Securities and Investments Commission (ASIC) in Australia. This policy will also apply to those disclosures.

As an exception to the recipients mentioned above, in certain circumstances in Australia, you may make a public interest or emergency disclosure to journalists and Members of Parliament for Reportable Conduct, or in New Zealand to any “appropriate authority” at any time. These processes are set out in Appendix 1 (for Australia) and Appendix 2 (for New Zealand).

If you wish to obtain additional information before making a disclosure, please contact one of our Whistleblower Protection Officers or the Chair of the Audit Committee.

3.4. Can you make a protected disclosure anonymously?

You can make an anonymous disclosure, but it may be difficult for us to properly investigate the matters disclosed if a report is submitted anonymously. Therefore, we encourage you to share your identity when making a disclosure, although you are not required to do so. If you share your identity, we will use our best endeavours to keep confidential any information that might identify you as the discloser.

Where a disclosure has been made externally and you provide your contact details, those contact details will only be provided to a Whistleblower Protection Officer with your consent or otherwise where this is allowed.

3.5. How will the protected disclosure be investigated?

We will investigate all disclosures as soon as practicable, after the matter has been reported. A Whistleblower Protection Officer will investigate the matter and where necessary, may appoint an external investigator to assist in conducting the investigation. All investigations will be conducted in a fair, independent and timely

manner and we will use our best endeavours to preserve confidentiality during the investigation and not identify you if you have requested anonymity.

The process you can expect is set out in Appendix 3.

If the report is not anonymous, the Whistleblower Protection Officer or external investigator will contact you to discuss the investigation process and any other matters that are relevant to the investigation.

Where you have chosen to remain anonymous, subject to the provisions allowing disclosure as set out below, your identity will not be disclosed to the investigator or to any other person conducting the investigation unless you consent in writing or where we reasonably believe that disclosure of identifying information is essential:

  • for the effective investigation of the disclosure; or
  • to prevent a serious risk to public health, public safety, the health or safety of any individual, or the environment; or
  • to comply with the principles of natural justice; or
  • to an investigation by a law enforcement or regulatory agency for the purpose of law enforcement.

Where possible, the Whistleblower Protection Officer will provide you with feedback on the progress and expected timeframes of the investigation, including consulting with you where we reasonably believe that disclosure of identifying information is required. The person against whom any allegations have been made will also be informed of the concerns and will be provided with an opportunity to respond (unless there are any restrictions or other reasonable bases for not doing so).

To the extent permitted by law and if appropriate, the Whistleblower Protection Officer may inform you and/or a person against whom allegations have been made of the findings of the investigation.

4. Protection of whistleblowers

We are committed to ensuring that any person who makes a disclosure in good faith is treated fairly and does not suffer detriment. The protections listed below will apply even if the discloser:

  • Is mistaken and there is no serious wrongdoing
  • Does not refer to the name of the legislation when making the disclosure
  • The discloser technically fails to comply with sections 11 or 14 the Protected Disclosures Act 2022 (for New Zealand only)
  • Makes the disclosure to another person, as long as they do so on a confidential basis and for the purposes of seeking advice about whether or how to make a protected disclosure in accordance with the relevant legislation in Australia or New Zealand.

4.1. Protection from legal action

If your disclosure qualifies as a protected disclosure, you will not be subject to any civil, criminal or administrative legal action (including disciplinary action) for making a disclosure under this policy. These protections do not protect you from your misconduct which is uncovered during an investigation or if you have acted in bad faith.

4.2. Protection against "Detrimental Conduct"

Datacom (or any person engaged by Datacom) will not engage in “Detrimental Conduct” against you if you have not acted in bad faith and you have made a proper disclosure of Reportable Conduct under this policy, or have signalled you intend to, or where you have encouraged someone else to make a disclosure.

Detrimental Conduct includes actual or threatened retaliatory conduct or less favourable treatment such as the following:

  • Termination of your employment or dismissal, or causing you to resign
  • Injury to your employment including demotion or disciplinary action
  • Failing to give you the same employment terms, benefits, or opportunities as similar employees
  • Altering your position or duties
  • Discrimination or unusual detriment or disadvantage
  • Harassment, bullying or intimidation
  • Victimisation
  • Retiring you or causing you to retire
  • Harm or injury including psychological or mental harm
  • Damage to your property, reputation or your business or financial position, or
  • Any other damage to you or your family, relatives, or associates.

We will take all reasonable steps to protect you from Detrimental Conduct in accordance with this Policy and will take necessary action where such conduct is identified.

We will ensure fair treatment of all people involved in a matter.

If you are subjected to Detrimental Conduct as a result of making a disclosure under this policy or participating in an investigation, you should inform a Whistleblower Protection Officer as set out above.

In Australia you may also seek remedies including compensation, civil penalties or reinstatement where you have been subject to any Detrimental Conduct. In New Zealand you may be able to raise a personal grievance under the Employment Relations Act 2000.

4.3. Protection of confidentiality

All information received from you will be treated confidentially and sensitively – to the same extent as any HR complaint or issue. All recipients will use their best endeavours to keep confidential any identifying information about you to the same extent as our Privacy Act obligations or otherwise in accordance with this Policy.

If you make a disclosure under this policy, your identity (or any information which would likely to identify you) will only be shared if:

  • You give your consent to share that information
  • There are reasonable grounds to believe the release of your identity is essential for effective investigation of the disclosure, to comply with natural justice, to prevent a serious risk to public health, public safety, the environment, or the health and safety of any individual (all only for New Zealand, and only after we have consulted with you prior to sharing as to why we need to)
  • The disclosure is allowed or required by law (for example, where the concern is raised with a lawyer for the purposes of obtaining legal advice), or in certain circumstances where required to inform law enforcement or regulatory authorities (for New Zealand only)
  • The concern is reported to the ASIC, the Australian Prudential Regulation Authority (APRA), the Australian Taxation Office (ATO) or the Australian Federal Police (AFP) (for Australia only).

Any recipient of your disclosure is required under this Policy not to disclose your identity unless one of these exemptions apply. Where it is necessary to disclose information for the effective investigation of the matter, and this is likely to lead to your identification, all reasonable steps will be taken to reduce the risk that you will be identified.

4.4. Support available

All our employees have access to our Employee Assistance Programme (EAP) for any ongoing concerns you have about any disclosure under this policy.

Details of our EAP providers for employees may be obtained via our People and Culture team or from a Whistleblower Protection Officer.

5. Consequences

Any breach of this policy will be taken seriously and may result in disciplinary action up to and including termination of employment.

Policy Approval

Rachel Walsh

Group chief financial officer, policy owner

Greg Davidson

Group chief executive officer

Last review: 30 June 2022

Appendix 1

Public interest and emergency disclosure (Australia only)

In certain situations, the conduct or wrongdoing (if it occurs in Australia) may be of such gravity and urgency that disclosure to the media or a parliamentarian is necessary.

A public interest and emergency disclosure can only be made to:

  • A journalist, defined to mean a person who is working in a professional capacity as a journalist, such as for a newspaper, magazine, or radio or television broadcasting service; or
  • A member of parliament (MP) for the Australian government, including federal, state and territory governments.

Public interest disclosure protection

To qualify for protection when making a public interest disclosure to a journalist or MP, all of the following need to apply:

  • You have previously disclosed the information to the applicable regulator (ASIC or APRA)
  • At least 90 days has passed since the previous disclosure was made
  • You have reasonable grounds to believe that action is not being taken to address the matters which you have disclosed
  • You have reasonable grounds to believe that making a further disclosure to a journalist or MP would be in the public interest; and
  • You have given written notification, including sufficient information to identify the previous disclosure to the regulator to which the previous disclosure was made that you intend on making a public interest disclosure.

Emergency disclosure protection

To qualify for protection when making an emergency disclosure to a journalist or MP, all of the following need to apply:

  • You have previously disclosed the information to the applicable regulator (ASIC or APRA)
  • You have reasonable grounds to believe that the information concerns a substantial and imminent danger to the health or safety of one or more persons, or to the natural environment
  • You have given written notification, including sufficient information to identify the previous disclosure to the regulator to which the previous disclosure was made that you intend on making a public interest disclosure; and
  • No more information is disclosed than is reasonably necessary to inform the journalist or MP of the substantial and imminent danger.

Appendix 2

List of appropriate authorities

The head of any “public sector organisation” which includes:

  • an organisation named or specified in Schedule 1 of the Ombudsmen Act 1975
  • an organisation (except for an officer of Parliament) named in Schedule 1 of the Official Information Act 1982
  • a local authority or public body named or specified in Schedule 1 of the Local Government Official Information and Meetings Act 1987
  • the Office of the Clerk of the House of Representatives
  • the Parliamentary Service
  • an intelligence and security agency
  • a council-controlled organisation within the meaning of section 6 of the Local Government Act 2002;
  • any officer of Parliament;
  • the persons or bodies listed in Schedule 2 of the Protected Disclosures Act 2022; and
  • the membership body of a particular profession, trade, or calling with the power to discipline its members.

But does not include:

  • a Minister, or
  • a member of Parliament.

Any protected disclosure that is or includes international relations information should only be disclosed to the Ombudsman, and any protected disclosure that is or includes intelligence and security information should only be disclosed to the Inspector-General of Intelligence and Security.

Where a disclosure is made to an appropriate authority, the appropriate authority may decide to refer the disclosure to Datacom or to another appropriate authority (in which case, the discloser will be consulted first).

Appendix 3

What you can expect once you make a protected disclosure

What you can expect once you make a protected disclosure

We will use all reasonable endeavours to complete the following process within 20 working days:

  • Acknowledge receipt – Acknowledge to the discloser the date the disclosure was received (and, if the disclosure was made orally, summarise the receiver’s understanding of the disclosure)

  • Consider – Consider the disclosure and whether it warrants investigation

  • Check – Check with the discloser whether the disclosure has been made elsewhere (and any outcome)

  • Deal with – Deal with the matter by doing 1 or more of the following:
    • investigating the disclosure
    • addressing any serious wrongdoing by acting or recommending action
    • referring the disclosure to an appropriate authority (New Zealand only). The receiver must first consult with the discloser
    • deciding that no action is required
       
  • Inform discloser (with reasons) – Inform the discloser (with reasons) about what the receiver has done or is doing to deal with the matter

However, where we cannot or when it is impracticable to complete these actions within 20 working days, we will use all reasonable endeavours to inform you how long we expect to take to deal with the matter and keep you updated on progress.