Whistleblown Away: A Costly Lesson for Employers in Protected Disclosures

The Employment Relations Authority has awarded over $500,000 to a former employee whose redundancy was considered to be “retaliatory” following a protected disclosure complaint.

Background

In 2024, the Employment Relations Authority in Bowen v Bank of New Zealand concluded Ms Bowen had been unjustifiably dismissed through a retaliatory redundancy.[1] Ms Bowen previously made protected disclosure complaints concerning two colleagues, one of whom was later involved in a restructuring process that led to the disestablishment of her position. After unsuccessful attempts at redeployment and mediation, Ms Bowen was ultimately made redundant.

Ms Bowen alleged the restructuring was motivated by retaliation for having made the protected disclosures. She brought several claims including personal grievances for unjustified action causing disadvantage and unjustifiable dismissal, breach of the duty of good faith and breach of her employment agreement. Although many of these claims failed, Ms Bowen was successful in showing BNZ acted in an unjustified manner through the retaliation.

The Authority held there were various key aspects that showed the disestablishment of Ms Bowen’s role was done in retaliation. Some of these included:

• Only 5 months earlier extensive work was undertaken in redefining the team roles and it made “no business sense to unwind all of that.”
• There was a lack of evidence of business drivers prompting such a change and evidence to the contrary showed the work required of Ms Bowen’s team remained.
• Unlike Ms Bowen’s earlier input in redefining the roles of the team, all work done to disestablish the team occurred without her involvement.
• The restructuring proposal itself raised red flags including that the initial proposal was for the team to remain. A decision to disestablish the team was made only after one of the parties Ms Bowen complained about became involved in the process. The Authority found that the logical conclusion that followed was that person (who was the manager) influenced that change.
• Some of the roles in Ms Bowen’s team were kept but sat in a newly created team which showed there was ongoing work for the team.

The Authority found that disestablishing Ms Bowen’s role and her resulting redundancy was unjustified, retaliatory, and caused disadvantage to her employment. As a result, BNZ failed to meet its good faith obligations and Ms Bowen was unjustifiably dismissed. In particular, the Authority noted the disestablishment “had no commercial basis” because work was still available for the team members.

Remedies awarded to Ms Bowen

In a recent determination the Authority set out what remedies would be awarded to Ms Bowen.[2] Ms Bowen provided evidence illustrating the impact on her health, including being diagnosed with PTSD, a Major Depressive Disorder and displaying a significant level of clinical depression, anxiety and stress.

As a result, the Authority ordered BNZ to pay Ms Bowen:

• $105,000 for compensation ($60,000 for unjustified dismissal and $45,000 for retaliation)
• $329,687 for lost wages
• $48,000 for lost bonuses
• $4,378 for KiwiSaver contributions
• $8,975 for medical costs incurred
• $10,000 for special damages (for legal fees)

BNZ was also ordered to pay the Crown $8,000 for the breach of the duty of good faith.

What does this case mean for employers

This case follows other recent determinations involving substantial monetary awards. It is therefore a good reminder of the importance of ensuring any restructuring is supported by a genuine, well-documented business rationale, particularly where an employee has previously raised complaints. Employers should also maintain clear whistleblowing policies and provide confidential reporting options for staff to raise concerns. Ultimately, decisions around redundancy must be based on legitimate commercial needs and not be influenced by irrelevant or retaliatory factors.

If you want to read more about the protections afforded to whistleblowers, please see our article here.

[1] [2024] NZERA 361.

[2] [2025] NZERA 380.

View the PDF here.