Complaint Handling Policies and Procedure — Add this to your Christmas ‘to do’ list!

7 December 2017

A recent investigation conducted by the SA Ombudsman indicates that council’s should revisit their complaint handling policies and procedures, including the complaint handling procedure adopted for the purpose of addressing complaints under the Codes of Conduct for both Council Members and Council Employees.

The recent investigation occurred as a result of a complaint to the Ombudsman by a ratepayer in the Kangaroo Island Council area. The complaint concerned a resolution passed by the Council as a consequence of an independent investigation of a conduct complaint lodged by the complainant with the Council.  It was alleged that the Council, in its minutes pertaining to the matter, disclosed the identity of the complainant to the public at large.  It was alleged that, in doing so, the Council acted contrary to the Whistleblowers Protection Act 1993 (“WP Act”).

The complainant did not specifically seek protection under the WP Act but had marked her complaint ‘Private and Confidential’. The complainant said that she did not consent to the Council disclosing her identity as the complainant in relation to the matter. She also said that she expected her complaint to the Council to be confidential and that the Council did not seek her permission before disclosing her identity in its public minutes. She explained to the Ombudsman’s office that she was concerned about the potential for repercussions within a small local community as a result of the Council disclosure of her identity.

In her provisional report, the Deputy Ombudsman made the recommendation that the Council revise its Code of Conduct Procedure and its Whistleblower Protection Policy to:

• take into consideration circumstances when a complainant may not specifically state that he or she wishes to invoke whistleblower status so as to be afforded protection under the WP Act; and
• recognise that each complaint received by the Council must be assessed to determine whether the WP Act has any application to the information disclosed.

The practical effect of the provisional findings is that every complaint made under the Code (whether Employee or Council Member) is required to be assessed for its application under the WP Act.  This will inevitably result in a fundamental change to the manner in which councils receive and assess complaints. For this reason, the Council, with the assistance of KelledyJones Lawyers, made comprehensive submissions to explain the difficulties that it and councils generally would encounter if the provisional position was maintained. Some of these difficulties included:

• the question as to the appropriate person to receive a complaint;
• whichever officer (or member) receives a complaint, would need to make an initial assessment as to whether the complaint fell under the WP Act;
• if the complaint was an appropriate disclosure of public interest information for the purposes of the WP Act, it would be required to be referred to the “responsible officer”;
• the “responsible officer” is the person designated under section 302B of the Local Government Act 1999 and may be a different person to the person responsible for dealing with a complaint under the relevant Procedure;
• if a complaint, assessed as being in accordance with the WP Act against the CEO is to be referred to the Mayor, is the Mayor someone who can even be designated as a “responsible officer” for the purposes of the WP Act when section 302B specifically requires the “responsible officer” to be a staff member;
• the practical effect, in relation to complaints against the CEO, is that a fellow (more junior) staff member would be the person responsible for investigating or overseeing the complaint made against the CEO; and
• the concern that where the person receiving the initial complaint is not the “responsible officer” that person will have knowledge of the complainant’s identity!

Despite raising the above concerns the Deputy Ombudsman chose to confirm her provisional findings in her final report.

Therefore, while it was accepted that it cannot be assumed that a member of the public will, ordinarily, be aware of the WP Act, or that there is an onus on them to identify whether a contemplated disclosure constitutes public interest information, the outcome of this investigation has resulted in required changes to the Council’s process. These changes will place the onus on Council employees to make an assessment as to whether there has been a disclosure of public interest information, whether identity protection should be afforded to the member of the public and then, a responsibility (on the Council) to protect that identity before the substance of the complaint is addressed.

It is to be noted that this is a decision of the Ombudsman’s office that, in legal terms, is to be considered as only a recommendation to the Council and to councils generally. It is not a decision of a court of record and, as our readers will be aware, the Supreme Court, on other occasions, has disagreed with recommendations from the Ombudsman’s office. Therefore, the decision of the SA Ombudsman in the Kangaroo Island Council matter, whilst not binding, should be considered to be advisory in nature but influential in terms of how that office will consider these matters if the subject of a complaint in the future.

Whilst the Public Interest Disclosure Bill 2016 is currently before Parliament, it is not expected, if it is passed, that it would alter the above position.

If you require assistance because your current policies and procedures do not adequately address this issue please contact Natasha Jones.