Matters in the workplace involving conflict of interests, commission of crimes and corporate non-compliance often only come to light through employee reporting. To incentivise disclosure under a cloak of secrecy and anonymity, it is necessary to ensure that employees are legally shielded from negative repercussions arising from these reportings.
The Malaysian Government proposes to introduce an all-encompassing whistleblowing law by 2010. The law is viewed as being critical to stemming corruption. A meaningful whistleblowing law will need to address, at the very least, the following salient issues:
- Whether it is a legal obligation or a choice to disclose
- Protection from negative repercussions arising from disclosure
- Standards that determine whether disclosures will be protected from repercussions
- Legal sanctions for retaliatory action taken against the whistleblower
While there are existing whistleblowing Malaysian laws relating to auditors, companies, banking, corruption, money laundering, offences against the State, misappropriation of property, and causing death, there is no specific law in Malaysia that protects employees in all instances of workplace non-compliance.
Whistleblowers who suffer detriment may claim constructive dismissal. Workplace sexual harassment victims whose complaints were not sufficiently actioned have succeeded with such claims. This was on the basis that their former employers had, by not taking sufficient action, breached the implied employment term of trust and confidence.
The burden of proof in a constructive dismissal claim lies with the claimant. It is necessary for the wronged employee to first exit employment. There are no clear guidelines as to what would constitute liability for retaliatory action, and it also takes several years before the Industrial Court hears the claim. The employer, rather than the relevant individual(s), would be liable. Thus, individuals in positions of authority may not be sufficiently discouraged.
It remains to be seen whether the proposed Act will introduce additional protections to private sector whistleblowers, and whether liability for constructive dismissal will continue following the Act’s introduction. To be truly effective, clear standards relating to what constitutes a protected disclosure, an efficient reporting infrastructure and strict enforcement will be key.
Woo Wei Kwang
Partner
Tel: +603 2298 7898
E: wei.kwang.woo@wongpartners.com