John McLean: Whistleblowers in the gun

The sad state of whistleblowing in New Zealand

New Zealand whistleblower Melissa Bowen has at long last been vindicated. Her vindication, and Bank of New Zealand’s excoriation, come courtesy of New Zealand’s Employment Relations Authority (ERA).

In November 2016, Bowen made a protected disclosure to BNZ’s board of directors. (“Protected disclosure” is New Zealand’s official term for blowing the whistle on bad corporate behaviour. The “protected” word is a misnomer; the protection is illusory, as we shall see.) Bowen alleged serious internal wrongdoing at BNZ.

It took over a year – until December 2017 - for National Australia Bank, BNZ’s parent company, to conclude its sham investigation of Bowen’s protected disclosure. Predictably, no serious wrongdoing was found. BNZ then duly took up the cudgels against Bowen and bludgeoned her into unemployment in July 2018.

But Bowen wasn’t prepared to meekly relent and disappear. In Michael O’Brien she found a wise, tenacious lawyer, and courageously took to the Courts. BNZ fought her every step of the way. In callous and cynical fashion, the bastard bank sought to burn Bowen off and ruin her, financially and psychologically.

Mercifully, on 19 June 2024 – albeit a full six years after BNZ had forced Bowen out - the ERA determined that BNZ had unlawfully retaliated against her for whistleblowing. You can find the full decision here https://theplatform.kiwi/opinions/justice-for-bnz-whistleblower-melissa-bowen

BNZ’s retaliation took the form of making Bowen spuriously redundant. In the ERA’s words, the “action done in retaliation” was a bogus business unit restructure for which there was “no commercial basis”. The ERA found that “Ms Bowen was unjustifiably dismissed” and that, by retaliating, BNZ “breached the duty of good faith it owed to Ms Bowen”.

I can’t quite tell, from the publicly available information, what the conduct was that Bowen identified as serious internal wrongdoing. There seems to have been some sort of anti-competitive targeting of a BNZ competitor.

Bowen’s Court actions are ongoing. Having outed BNZ’s vindictive unlawfulness, the financially-ruined Bowen can now, belatedly, expect chunky monetary compensation from BNZ.

So, who was at the BNZ helm during this whole sorry saga? A certain Douglas McKay was BNZ’s Board Chair, throughout. McKay retired from BNZ in February 2024. And who was BNZ’s chief executive when BNZ forced Bowen out? Australian Angie Mentis, who drifted back to NAB Australia in 2021.

McWhistleblower

As it happens, Yours Truly has personal experience of New Zealand’s whistleblowing regime. I partly covered my protected disclosure in an earlier Substack, focusing on the Reserve Bank’s malfeasance NEW ZEALAND’S RESERVE BANK - by John McLean (substack.com)

Now let me flesh out what happened to me at the level of my employer, Rabobank New Zealand. If nothing else, Rabobank demonstrated that unlawful malice and malfeasance are not the exclusive preserve of New Zealand’s Australia-owned banks. (Rabobank is a Netherlands-based global bank.)

The essence of my protected disclosure was:

• Rabobank New Zealand was being run out of Rabobank Australia, in flagrant breach of the Reserve Bank’s requirements for a New Zealand bank to have New Zealand-based autonomy in its governance

• Rabobank was concealing its breaches of the New Zealand-autonomy banking rules by lying on multiple levels to its prudential supervisor, the Reserve Bank of New Zealand, including in writing

I blew my whistle entirely in the prescribed chords. I first went to Rabobank itself, setting out my concerns. Without explanation, Rabobank summarily rejected my concerns. (Then Rabobank New Zealand Chair, Sir Henry van der Heyden, simply asserted, without any supporting evidence – and I suspect, without communicating with the Reserve Bank - that the Reserve Bank knew full well how Rabobank New Zealand was being run and was perfectly happy.)

I then contemplated using Rabobank’s external protected disclosure channel, KPMG. However, a then-partner of KPMG advised on the sly that KPMG would not conduct any qualitative assessment of any protected disclosures that I might make to KPMG. Rather, would simply hand my allegations straight back to Rabobank. Yikes.

So, I took my protected disclosures to the Reserve Bank, then to the Minister of Finance, and lastly to the Government Ombudsman (as set out in my earlier Substack), all utterly to no avail.

This was happening to me in the context of a wholesale evisceration and clean-out of all New Zealand-based Rabobank senior management who dissented from Rabobank Australia’s hegemony over Rabobank’s New Zealand operations.

What happened to me after I took my protected disclosures to Reserve Bank parallels how BNZ treated Bowen. Shortly after I went to the Reserve Bank I was put on “performance management” for alleged suboptimal behaviour that Rabobank steadfastly refused to describe. I was forced to undergo loopy behavioral modification training with a charlatan external consultant engaged by Human Resources. I was ostracized from other senior management, in my daily work. Clearly Rabobank knew I’d gone to the Reserve Bank. Perhaps the Reserve Bank had told Rabobank. Who knows.

New Zealand’s Protected Disclosures (Protection of Whistleblowers) Act 2022 contains, on its face, legal protections for whistleblowers from retaliation. That Act’s predecessor legislation, the Protected Disclosures Act 2000, contained similar protections. But those protections count for next to nothing when a whistleblower’s employer takes aim at the whistleblower. It takes extraordinary tenacity, of the sort exhibited by Bowen, for a whistleblower to achieve any level of protection and vindication. Lesson: If you don’t have money and aren’t willing (like Bowen) to be financially ruined and psychologically gaslit and traumatized, steer clear of making any protected disclosure, no matter how egregious the bad behaviour you see is.

The mildest cynic could easily conclude that banks’ internal protected disclosures procedures are more designed to get troublemakers to poke their heads above the parapet, so they can be shot off, than to root out internal wrongdoing.

In my case, I was fortunate to be able to take redundancy from Rabobank at the end of 2020, when Rabobank moved its New Zealand head office to Hamilton. The murky circumstances of that move are another story, but did inspire this joke from me:

Banker One: “Our bank is moving its head office to Hamilton”

Banker Two: “That’s nothing. Our bank is moving its head office to the Moon”

Banker One: “That’s got to be bullsh*t”

Banker Two: “Of course it’s bullsh*t, but you started it”

What’s no joke are New Zealand’s rapacious overseas-owned banks, and how they treat their customers and internal dissenters. These banks can go whistle. But the answers to their behaviour are not blowing in the wind, or readily apparent anywhere else.

John McLean is a citizen typist and enthusiastic amateur who blogs at John's Substack where this article was sourced.