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Correction: Oranga Tamariki v Win (2021)



On 19 May 2021 we reported on Oranga Tamariki enforcing against a former employee and suspected whistleblower who it claimed breached a non-disparagement clause in a Record of Settlement.


Here’s the determination of the Employment Relations Authority from the MBIE website dated 24 March 2021. We wrote to Oranga Tamariki’s general counsel :


“[introduction]...We haven't been in contact with Mr Win. Without further comment at this stage I invite you to read this October 2020 article which I co-wrote: https://www.leightonassociates.co.nz/post/how-to-gag-a-whistleblower-in-the-nz-public-service-by-kim-leighton . If you and/or internal counsel would like to discuss the issues raised, you are welcome to contact me by email...”


(OT respectfully declined our offer).


We were expecting to eventually see a determination that awarded penalties against Mr Win, but when that didn’t happen we re-examined what we thought had been a penalty against a second employee who had been anonymised to SLU, dated 10 May 2021.


We wrote to Oranga Tamariki’s external counsel Mr Brookes an an attempt to confirm our suspicion that Mr Win and SLU were the same person and while he did not respond, we were able to get confirmation another way. Where our reporting has been wrong, we have an obligation to correct it.


To summarise, during March to May 2021 Oranga Tamariki sought, and were granted, a Compliance Order, a penalty and costs against former employee Graeme Win for disparaging Oranga Tamariki.


As is often the case wherer whistleblowers believe they are protected by the Protected Disclosures Act, ERA Member Doyle found that:


[54] Information was furthermore not disclosed in a manner provided by Oranga Tamariki’s internal procedures.


It gets better: in the 10 May determination the ERA ordered $4,800 of the $6,000 award to be paid to Mr Win’s (SLU’s) former colleagues.


We got it wrong because we were misled by MBIE. Remember that a compliance order was issued against Mr Win on 24 March. We contacted Oranga Tamariki in April. The penalty against “SLU” (who we thought was a person other than Mr Win) was issued 10 May. But note the comments on anonymisation:


(A) The application for a non-publication order by SLU is declined. There is an interim non-publication order for 28 days to enable a challenge.


It’s possible that the unrepresented Mr Win, when applying for anonymisation, was unaware that he had already been named in the Compliance Order determination of 24 March. But it’s simply not possible that an ERA Member would have forgotten about allowing him to be named.


Given that:

  1. A whistleblower may have been gagged,

  2. The former employee (and possible whistleblower) was sued for disparagement,

  3. Leighton Associates signalled its interest,

  4. Inexplicably, the ex-employee issued with a compliance order under his real name was then ordered to pay a penalty under a pseudonym, and

  5. Most of that penalty money was to be paid to former colleagues,

  6. The accuracy of MBIE’s reporting is otherwise excellent,


... we suspect that the anonymisation of Mr Win (to SLU) was an attempt by OT (agreed to by MBIE) to mislead the public, and now Leighton Associates are wise to it.


Anyway, we made an error and this article constitutes our correction.


Tristam Price, Leighton Associates

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