Whistleblower protections in practice | Part 1: Learnings from whistleblower’s actions

In 2019, the whistleblower reforms were enhanced to provide greater protection for whistleblowers. However, since then, there has been little guidance on how these protections operate in practice. Recently, there has been an abundance of case law that provides practical perspectives on how the provisions may be interpreted. These decisions help frame how entities can appropriately and effectively manage whistleblower disclosures and where certain conduct is still in a grey area.

Whistleblower legislation

Under section 1317AA of the Corporations Act, a disclosure of information qualifies for protection where three conditions are met:

1. The discloser is an eligible whistleblower;

2. The disclosure is made to an eligible recipient; and

3. The discloser has reasonable grounds to suspect that the information concerns misconduct or an improper state of affairs or circumstances.

The third condition is typically the most contentious and ASIC has previously released guidance stating that it is "intentionally broad". This has left employers with a great deal of uncertainty in determining whether a report of conduct may be protected as a whistleblower disclosure or whether it should otherwise be triaged into other grievance channels.

Disclosures do not need to be labelled as a ‘whistleblower disclosure’ when they are made. Any whistleblower disclosure will receive protections under the regime if they satisfy the criteria. These protections include the protection against the disclosure of their identity and protection against conduct that could cause detriment to them due to a belief or suspicion that they made a protected disclosure.

The two decisions in this Part 1 unpack the elusive ‘criteria three’. Stay tuned for Part 2 which will cover ASIC’s actions and directors’ duties.

Mount v Dover Castle Metals Pty Ltd

In Mount v Dover Castle Metals Pty Ltd [2025] FCA 101 (“Mount”), the CEO of Dover Castle Metals (“Dover”) raised concerns regarding site safety, operational procedures and alleged director misconduct through internal channels. The CEO was dismissed and brought proceedings against Dover, alleging Dover had breached the Act by unlawfully disclosing his identity and subjecting him to various detriments by terminating his employment and injuring his reputation. The Court ultimately rejected these claims, finding that Dover had dismissed the CEO due to its belief that he had engaged in misconduct and not due to a belief or suspicion he was a whistleblower.

3 key takeaways:

• Whistleblower protections can still apply to the disclosure made to eligible and ineligible recipients. Whether such a disclosure waives the whistleblowers’ right to confidentiality protections under the regime is still unclear. Employers should continue to treat these matters with strict confidentiality, despite any disclosures to ineligible recipients, until this matter is clarified.

• Companies can disclose the existence of a whistleblower report / information provided by the whistleblower where it is not likely to identify the whistleblower. That said, this line can be difficult to walk and what is likely to reveal the identity of a whistleblower is not always clear. The best approach is to ask the eligible whistleblower for their consent before disclosing identifying information from their disclosure.

• Even if an employer does not prove it had a valid reason to terminate an employee, the Court may still determine that the termination was not connected to a whistleblower's disclosure.

Reiche v Neometals Ltd

In Reiche v Neometals Ltd (No 2) [2025] FCA 125 (“Reiche”), the head of recycling at Neometals Limited (“NeoMetals”) and the managing director of Primobius GmbH (a JV between NeoMetals and another company) raised concerns internally. These concerns included a whistleblower complaint regarding the conduct of directors and a contractor of Primobius GmbH. The whistleblower was later made redundant by NeoMetals as part of a company restructure, however, he brought proceedings alleging they had subjected him to various detriments because he made protected disclosures. The Court determined that the employee’s role was validly terminated due to a restructure and for reasons unrelated to his disclosure.

3 key takeaways:

• Information does not qualify for protection if it would not engage or assist the regulatory functions of ASIC, APRA or another Commonwealth authority in relation to a company or a related body corporate. Strategic or commercial risks that the board is aware of are not protected. This re-iterates the purpose of the regime which is directed at compliance with, and enforcement of, commonwealth laws.

• The whistleblower must subjectively possess grounds to suspect the relevant information, and there must be objectively reasonable grounds for that suspicion.

• Employers can continue with exiting performance management and termination processes provided that there are clear and valid reasons for that action and those actions are not based on the whistleblower’s disclosure

Stay tuned for Part 2 which will cover ASIC’s actions and directors’ duties.

If you have any questions on how to address a whistleblower complaint and what the recent cases mean for your compliance procedures, we are happy to assist you. Please contact Emma Peters and Barbara Vrettos from our ESG Team.