REPORT ON WHETHER WHISTLEBLOWERS SHOULD BE REWARDED FOR MAINTAINING SHAREHOLDERS VALUE OR SHOULD BE REVILED FOR THEIR ACT OF DISLOYALTY TO THE CORPORATE MANAGEMENT TEAM
IN PARTIAL FULFILMENT OF THE AWARD OF POST-GRADUATE DEGREE (MSC FINANCE AND BUSINESS MANAGEMENT) UNIVERSITY OF BEDFORDSHIRE
ACKNOWLEDGEMENT TABLE OF CONTENTS EXECUTIVE SUMMARY INTRODUCTION BACKGROUND OF STUDY STATEMENTS OF PROBLEMS RESAERCH AIM AND OBJECTIVES SIGNIFICANCE OF STUDY RESEARCH METHODOLOGY LIMITATION TO STUDY OVERVIEW OF CHAPTERS LITERATURE REVIEW INTRODUCTION HISTORICAL BACKGROUND OF WHISTLEBLOWING WHAT IS WHISTLEBLOWING TYPES OF WHISTLEBLOWING INTERNAL WHISTLEBLOWING EXTERNAL WHISTLEBLOWING ALLERGED ORGANISATION MISCONDUCT AFFECTED PARTIES TO WHISTLEBLOWING ORGANISATION (CORPORATE MANAGEMENT TEAM) SHAREHOLDERS & STAKEHOLDERS INDIVIDUALS (WHSITLEBLOWERS) POTENTIAL BENEFITS OF WHISTLEBLOWING TO VARIOUS PARTIES POTENTIAL BENEFITS TO ORGANISATION (CORPORATE MGT TEAM) POTENTIAL BENEFITS TO SHAREHOLDERS & STAKEHOLDERS POTENTIAL BENFITS TO INDIVIDUALS (WHISTLEBLOWERS) POTENTIAL COSTS TO ORGANISATION
1.1 Background of Study Organizations often face information that exposes problems or wrongdoing or represents dissent. Messages signalling problems or wrongdoing frequently come from internal sources such as employees or from related agencies and organizations aware of problems or wrongdoing. When the organization refuses to take appropriate action in response to these messages, insiders or outsiders may call broader attention to the issue by blowing the whistle. The communicative process of blowing the whistle is critical for organizations and societies seeking to monitor areas of emerging risk that are threatening to an organization’s established routines and assumptions (Jensen, 1987; Miceli & Near, 1992; Redding, 1985; Seeger 1997). Over the past 25 years the topic of whistle blowing has been turned around from being such a rare occurrence, to the present when more numerous cases would readily flow off the tongue. (Vinten, 1993). This signifies that the concept of Whistle-blowing cannot be over emphasized. Apart from being an important aspect of corporate governance, it occurs in all types of organizations and in response to many kinds of wrongdoing. Whistle-blowing is often presented as a personal act of conscience that contributes to the open dissemination of important information about the wellbeing of the public (Nader, 1990). Thus, whistleblowing can also be viewed as a strategy to enhance and maintain quality. It is commonly framed as the ethical act of a hero, a virtuous individual following a personal sense of right and wrong at great personal risk, and no doubt, some employers would always hesitate at the thought of providing rewards for ethical behaviour. In other instances, however, whistle-blowers are described as turncoats breaking trust and confidence and lacking in loyalty (Winfield, 1994). Peter Drucker (1982), for example, argued that encouraging whistle-blowing compromises trust and the
overall ethical climate of organizations: “Whistle blowing is simply another word for informing” (p. 234).
1.2 Statement of problem Having stated earlier that the concept of whistleblowing cannot be overemphasized, it is pertinent to give a brief definition of what whistle blowing is. It involves an individual with some level of unique or inside knowledge using public communication to bring attention to some perceived wrongdoing or problem, (Johannesen, 1996; Seeger, 1997; Vinten, 1994). Whistleblowing is seen as a risky business, however most whistleblowers suffer in various ways, including ostracism, harassment, punitive transfers, reprimands, referral to psychiatrists and dismissal. It is worthy to note that bosses and top managers are responsible for many of the attacks on whistleblowers, but coworkers often join in or do nothing, often due to fear that they could be the next victims. Several authors and academics have established numerous benefits associated with whistle blowing. If this being the case, it is however alarming to discover several ways in which whistle blowers suffer as a result of being loyal. This research tends to provide an insight into the above mentioned problem by which investigating ways in which whistle blowers can be rewarded and protected from the above punitive measures as well as exploring whistle blowing policies in selected organizations. 1.3 Research Aim and Objectives The aim of this research has its origin from the above mentioned problem. This research therefore aims to analyse if whistleblowers should be rewarded by companies as they enhance shareholders valuation, or whether they should be despised for disloyalty to corporate management team, using UK and USA as my main area of concentration.
In order to achieve this aim, the following research objectives would be examined; • To examine the whole concept concerning whistleblowing • To find out the benefits and costs of whistleblowing to the whistleblowers, organisations, as well as the stakeholders • To examine the concept of Corporate governance as an important tool in business ethics • To examine the employees duty of Loyalty and Confidentiality to an organisation • To examine several laws and regulations protecting whistleblowers in the UK and in the United States. • To draw a conclusion as to whether whistleblowers should be rewarded or reviled. 1.4 Significance of Study Whistleblowing has been viewed from different perception. As a result of this, so many research studies has been done on corporate governance as regards ethical issues, morality, illegality especially with regards to whistle blowing in Canada, UK, USA, Australia and a multitude of many other countries. Hence, academics have shown an intense concern in identifying the factors proposed to encourage and improve how whistleblowing can be managed in organisations. This study is concerned with determining the existing factors that protect individuals who disclose wrongdoings in organisations, and legal protection available for those who are willing to blow the whistle, but frightened of its cost. As a result of these, whistleblowers in organisations need to be protected especially when they are faced with challenging situations, particularly in the UK and the USA. This study will also help improve the practice of whistleblowing management by eradicating misconducts, and adopting ethical values in UK and USA, which serves as an indicator of this study.
However, this research will contribute to existing literature on whistle blowing as it tries to put to test whistleblowing theories and case studies, with particular reference to corporate organisation (corporate management team), and also serve as a base for further research on whistle blowing. 1.5Research Methodology Since the aim of this study is to analyse if whistleblowers should be rewarded or reviled, for the purpose of this study, secondary data would be used to obtain information needed, by thoroughly examining what other researchers/scholars have said and their various judgment .This research method that would be based on secondary data would be gotten from; Articles and Journals, Published Books, newspapers, magazine reports and published or unpublished reports. 1.6 Limitation of Study The limitation to this study is the fact that the research is restricted to the use of data from secondary sources only such as journals, textbooks, magazines and newspapers. The use of primary data would have been more helpful, in that we would not be restricted to what other researchers have said, but we would have had the opportunity of ask for others opinion via questionnaire and personal interviews 1.7 Overview of Chapters Chapter 1 of this study provides a general overview of the entire study. This includes an introduction and background of whistleblowing; the statement of problems; research aim and objectives; the significance of the study; methods that would be used in gathering information needed for the study is also included; limitation to the study; as well as the overview of chapters. Chapter 2 deals with the literature review, which looks at relevant theoretical and empirical work on whistleblowing. This chapter examines the benefits and costs of blowing the whistle, laws, regulations, policies as regards whistleblowing in the
UK and USA, such as the PIDA, Sarbanes Oxley, as well as employee’s duty of loyalty and employer’s ethical duty of good corporate governance. Chapter 3 provides a review of different case studies of whistleblowing in some selected corporate organisations in the UK and USA. The context of this chapter will entail brief background of the company of discuss, the scandal i.e. the accusation that created the motive for blowing the whistle, and finally the outcome of the case will be discussed in order to know whether the whistleblowers in question were rewarded or compensated for blowing the whistle, or punished, dismissed or victimised as a result of blowing the whistle on its organisation. Chapter 4 gives an analysis and discussion of the theories of the reviewed literature side by side with the selected case studies Chapter 5 winds up the study by presenting a conclusion based on our findings between certain case studies on whistleblowing and conceptual research framework under the study of whether whistleblowers should be rewarded as they help in improving the valuation of an organisations share, or whether they should be reviled for their act of disloyalty to their organisation. It also highlights recommendations are made for future research arising from the study.
WE HAVE TO STATE OUR FOCUS (COY OF FOCUS AND ARE OF CONCENTATION (SHAREHOLDERS FOR THE PURPOSE OF THIS STUDY)
2. LITERATURE REVIEW
2.1 Introduction The issue of whistle blowing is increasingly becoming a topic of discussion as employees protest concerns about illegality at work (Vinten 1994). Vinten further stressed that this issue can have tragic and threatening consequences on the individual, and also put the company being reported at stake in terms of survival. It is therefore a problem that will concern not only managers, but students of business and management as well as workers. According to Miceli and Near (1994), whistleblowing poses several problems for organisations and its members who respond to alleged organisational misconduct, thereby, making it difficult for such organisation to achieve a level organisational decency. 2.2 HISTORICAL BACKGROUND OF WHISTLEBLOWING Whistleblowing is a new name for an ancient practice from the development of the theory of individualism. Before Christ in the eighth century, the Hebrew prophets such as Hosea and Amos did criticise rulers for their social injustices selflessly, thereby risking their lives (Vinten 1994) The first recorded usage of “whistleblowing” occurred in 1963 during the famous Otto Otopeke case. Some documents concerning securities risks in the new administration was handed over to the Chief Counsel of Senate Subcommittee on Internal Security by Otopeke. The then Secretary of State Dean Rusk, dismissed him from his job in the State department for conduct unbecoming a state department officer. This highly fascinating incident has ever since then been growing gradually in the media report (Petersen and Farrell, 1986). In the 60’s employees were at all cost expected to be loyal to their organisations, thus firing at will any employee who does not comply with the duty of loyalty. This was as a result of lack of protection for employees who go against this duty of loyalty to blow the whistle.
In the 70’s many cases of were experienced as many employees decide to swallow the whistle despite the awareness of hazardous products. The case of Firestone in 1972 is a typical example of swallowing the whistle, as warnings of the producing inferior tires were not adhered to, thus causing may life and some injuries. The 1980’s was the beginning of new era for whistleblowers as employees were provided with protection against whistleblowing so employees could no longer fire them at their free will. This protection enacted was to protect employees in the corporate world of America. The wake of Enron and WorldCom, coupled with Sarbanes-Oxley, was the climax of it all, where employees are now given more power to report ethical and legal infringement (Ravishankar, 2007)
2.1 What is Whistle blowing According to Lewis (2001), there is no universally accepted concept of whistleblowing but it has been defined by various authors .Some of these definitions is as follows: Vinten (1994:5) defined whistleblowing as “the unauthorized disclosure of information that an employee reasonably believes is evidence of the contravention of any law, rule, or regulation, code of practice, or professional statement, or that involves mismanagement, corruption, abuse, of authority, or danger to public or worker health and safety”. Nader et al (1972) also describes whistle blowing as an act whereby an individual whose concern for the public tends to outride that of the organisation he serves and as a result, report any fraudulent, illegal or harmful doings of an organisation he/she serves to the public. Near and Miceli (1985), sees whistleblowing as a situation whereby employees of an organisation (past/present), reports or leaks a wrongdoing, misconduct i.e. illegal or illegitimate act, to a person (internal or external) or organisation who is able to do something or pass judgement. Eaton and Akers (2007) equally share
the same view with Near and Miceli that whistleblowing is a form of “ethical informing”, which is motivated by the desire to protect and promote the interest of the public. Whistleblowing was also defined by Jubb (1999) as the disclosure of public record, by an employee or person with way into an organisations’ information, about the illegality which implicates the organisation to an external authority. Based on a number of definitions of whistleblowing, I will summarise whistleblowing as been an act whereby an individual decides to report any form of wrongdoings, misconduct, illegality or activities which can jeopardise the reputation of an organisation. This act could be reported to internally i.e. within the organisation, or externally i.e. outside the organisation as long as required action is taken to correct the act. In spite of all what has been defined by researchers as whistleblowing, the views of some are totally different. Researchers of different view of whistleblowing are classified as anti-whistleblowers. THE ANTI-WHISTLE BLOWERS Whistle blowing is not mostly encouraged by everybody. The most distinguished anti-whistleblower is Peter Drucker (1981). According to him, Whistle blowing could be viewed as ‘informing’, he also explained further that the societies that encouraged informers in the Western history were bloody. To him, mutual trust, and ethics under Whistle blowing should be viewed as impossible. Hoffman and Moore (1982), criticised Drucker’s judgements and said ‘informing’ is a valueladen interpretation, not a neutral description of Whistle blowing. To them, Whistle blowing cannot be expressed as ‘informing’ and that Drucker did not present a clear argument to support his claims. They further posited that the support needs rigorous normative reflection and this reflection should be the area of business ethics.
An Editorial Survey in Business and Society Review (Orr, 1981), where a group of leading business and thinkers were invited to comment on Drucker’s article. According to them, Drucker was generally over simplistic and Monte Throdahl, senior Vice-President of Monsanto said that his company had made something good from Whistle blowing especially in respect to safety and environmental issues. Westin (1981) considered that Druckers and those who had the mentality as him (i.e. those that see whistleblowers as rats and whistleblower protection legislation as rat protection) deserve to be called ‘totalitarian’. These people will only tend to evaluate silent loyalty to employers i.e. those who act unlawfully or in clear disregard of public interests, above any moral or social duty, which is meant to be the otherwise.
ALLERGED ORGANISATION MISCONDUCTS A good number of authors from our definition of Whistle blowing speak about it as been related to an alleged organisational misconduct. So, an individual must observe an unpleasant behaviour in an organisation, or position of wrongful happenings before a form of disclosure can occur or can have effect. After that, the observations then stand as a starting point for the whistleblower to disclose misconduct (Miceli and Near, 1992). On the other hand, there must be verification that the misconduct/ wrongdoing are vital for the individual to disclose it and speak about (Gundlach, Douglas and Martinko 2003).
TYPES OF WHISTLEBLOWING According to Near and Miceli (1995), there exists two basic form of whistle blowing. They are; Internal Whistleblowing External Whistleblowing
Internal Whistleblowing This is a situation whereby an individual or employees reports any form of wrongdoings, or illegality of an organisation to a source within the organisation that can pass necessary judgment. This type of whistleblowing occurs when the whistleblower reports wrongdoings to members outside the hierarchy of command within the company. This may possibly comprise of company’s board of directors such as executive officers as well as non-executive officers, who are representatives of company’s shareholders (Finn, 1995). Consequently, reporting wrongdoings to colleagues cannot be classified as whistleblowing (Kings, 1999). Barnett (1992) further stated that the issue of internal whistleblowing helps organisations rectify wrongdoings before it goes public and causing damages to such company’s reputation as well as its shareholders. Somers and Casal, (1994), purported that in organisations, internal whistleblowing can be examined as an expression of trustworthiness and commitment. Therefore, internal whistle blowing among employees can be encouraged by the introduction of cultural ethics (Kings 1999). External Whistle blowing This is a type of whistle blowing whereby a wrongful or illegal act is reported to sources outside the organisation. Such sources may include reporting to the media, professional bodies, interest groups, law enforcement agencies, and many more (Near and Miceli, 1995). When an organisation is without a safe internal route, whistleblowers are left with no other choice but to disclose the wrongdoings externally to authorities or more widely. Also, employees tend to blow the whistle externally when they do not feel safe blowing the whistle within the organisation. (Dehn, 1999) Most times, external whistleblowing occur when internal whistleblowing is ignored or when proper action is not taken on the report. Most often,
On the other hand, some researchers argue that this type of whistleblowing brings about negative publicity about an organisation as well as its brand name and reputation. This negative impact causes shareholders and potential shareholders loose confident in the organisation. (Barnett, 1992 and Binikos, 2006). Have I actually argued
REVIEW OF PREVIOUS STUDIES Many researchers have studied the act of whistleblowing from different views. The following studies were relevant for this study: David (2005), in his paper made to find out how management should respond to whistleblowers argue that most employees who notice wrongdoings refuse to disclose it to management because of the fact that they might get punished for speaking out. As a result of this, there could be mistrust in the management of an organisation. He finally concluded that employees should be rewarded for the courage they have in blowing the whistle as it will serve as a good signal to other employees that it is safe to disclose unethical behaviour. Dr Romulo (2004) discussed shareholders awareness, attitudes and concerns regarding whistleblowing. According to him, whistleblowing can be seen as anticorruption measure. For the purpose of his research, 50m stakeholders were interviewed over the issue of whether whistleblowers should be rewarded or not. Findings of his study indicated that whistleblowers should be given financial incentives which will serve as form of motivator for potential whistleblowers. Some whistleblowers should not be rewarded as it is their responsibility as it should be seen as part of their job. Dr Romulo concluded that whistleblowers should be rewarded in terms of monetary reward, but potential whistleblowers should not take advantage of this reward and start making living out of whistleblowing.
Thompson, (1987), in his study described whistleblower as ’’concerned employee’’. The word concern is an affirmation that the employee has the interest of the organisation at heart. However, he stated that whistleblowers are seen from a negative perspective, as they are usually well thought of as rebellious employees, thus at the end of their actions, they are mostly dismissed, poorly evaluated by their employers. All the above studies provide a concrete support and also give an idea on the subject of whether Whistleblowers as been rewarded for their action or otherwise. On basis of these researches done by different researchers, a methodology has been developed for this research. AFFECTED PARTIES TO WHISTLE BLOWING IN ORGANISTAION WHISTLEBLOWER The Whistleblower is a concerned citizen, who is totally inspired by the public interest, and opened to disclosing a significant wrongdoing to a person capable of investigating and facilitating correction of such wrongdoing (Senate Select Committee on Public Interest Whistle blowing 1994). Such disclosure could be done within a source in an organisation or outside the organisation. Vickers (1995) explains two types of whistleblower; the ‘watchdog’ and ‘protest’ whistleblowers. Vickers describes a ‘watchdog’ whistleblower as a person or an employee who discovers any form of illegality or wrongdoing, then exposes it so as to aid financial disaster or safety, and a ‘protest’ whistleblower as a person who tends to be mostly concerned about the effects of their employer’s activities. SHAREHOLDERS & STAKEHOLDERS The strategic objective of any organisation is to maximise shareholders’ wealth as well as that of stakeholders such as employees, customers, tax authorities, and the communities where firms operate. This simply means that mangers should create as much wealth as possible for the shareholders, and focus on their stakeholders too. The shareholders wealth can be maximised through the
cash received as dividend and capital gains arising from increasing share prices (Head and Watson 2004) Therefore, firms that focus on their shareholders and stakeholders would mostly avoid actions that could be harmful to them (Megginson and Smart 2006). Maximisation of Shareholders Value (DO I NEED TO TALK ON THIS) CORPORATE MANAGEMENT TEAM Management is an integral part of, and fundamental to, the successful operations of the organisation. Management is therefore the cornerstone of organisational effectiveness, effectiveness, and is concerned with activities for carrying out organisational processes and the execution work. There are many aspects to management in work organisations, but the one essential ingredient of any successful manager is the ability to handle people effectively. (Mullins 2005)
POTENTIAL BENEFITS OF WHISTLE BLOWING TO VARIOUS PARTIES Whistleblowing tends to be beneficial to various parties. Some prominent authors such as (Graham, 1983; Mathews, 1988; Parmerlee, et al.1982) purported that whistleblowers can benefits organisations, individuals as well as shareholders by suggesting solutions to organisational problems. These benefits could be shortterm or long-term (Near and Miceli 1992). Therefore, below are some benefits of Whistle blowing.
POTENTIAL BENEFIT TO ORGANISATIONS (CORPORATE MANAGEMENT TEAM)
Whistleblowing can be of great benefits to corporate management team as it facilitates; Maintenance of Goodwill and Avoidance of Damage Claim; Individuals and Public may decide not to purchase certain goods & services as soon as they realise any form of wrongdoings, thereby putting the market of such organisation at a disadvantage over other companies with related products and services. In order words, when attention is given to wrongdoings reported within
an organisation, it will help protect the good name of the organisation and avoid any form of damage claim. However, some argue that outsiders hear of wrongdoings, this is because of the fact that the whistles are blown outside. But according to Baker (1983), whistles are blown outside when not given proper attention to inside. Support for Codes of Ethics A research by Mathews (1987:125) stated that there existed “little relationship between codes of conduct, civil, and administrative corporate violations, contrary to the notion that the codes serves as an effective form of regulation”. Hence, Whistle blowing helps management of organisations who responds to it make necessary changes which goes in line with organisational codes of ethics (Near and Miceli 1992). Improved Employee Moral Those who blow the whistle tend to feel more fulfilled ad satisfied than those who keep silent to wrong doings. Therefore, accomplished Whistle blowing gives employees more confidence that they are able to change unethical behaviour in organisations, thereby improving employees’ satisfaction at work (Near and Miceli 1988a). Avoidance of Legal Regulation Organisations trapped in illegal activities are mostly subject to punishment by legal authorities. Such punishments are mostly borne by investors and mangers of such corporate illegality (Davidson & Worrell, 1988). Punishments for wrongdoings or illegality can only be minimised or avoided when the organisations involved yields to internal Whistle blowing and corrects it before the public learns of the organisations wrongdoings. Also, correction of internal Whistle blowing protects the organisation from been constantly monitored by legislators, which could lead to the introduction of new regulations of organisations activities (Near and Miceli, 1992)
POTENTIAL BENEFIT TO INDIVIDUAL (WHISTLEBLOWER) Whistleblowers according to Cherry (2004), are regarded as “Lone voices of reason, morality and truth who speak out to protect the public from harm”. Hence, benefits of blowing the whistle are that; The whistleblower would be legally protected from retaliation as he/she places the interest of the public more importantly than that of his employers. They usually receive several awards for their loyalty as well as public recognition. POTENTIAL BENEFITS TO SHAREHOLDERS & STAKEHOLDERS Shareholders are regarded as those individuals who provide fund for ongoing of an organisation. They are usually regarded as legal owners of businesses who are interested in how their money is been invested so they can have returns in form of cash dividend and capital gains and stakeholders comprise of employees, consumers and the general pubic. Workers usually pay more attention to their job security, pay as well as health and safety policy put in place at work. Consumers are particular about the quality of goods & services consumed, thus, making the public/community interested in the social and environmental impact organisations have on the community. As a result of all these, when making corporate decisions, each of these groups needs to be well thought of, since they have got a “stake” in the organisation (Lewis 2001). As a result of these, Whistle blowing helps shareholders & stakeholders to; Increase their Safety and Well-being; Whistle blowing adhered to or corrected tends to save a company from huge potential loss which could harm stakeholders especially (investors and potential investors) of an organisation from huge financial loss, since weak financial performance will damage shareholders interest (Lewis 2001). Thereby, enabling stakeholders, especially shareholders and potential investors feel save in investing their monies in such company.
Subsequently, the criminal Justice Commission (1999) also provides some longterm benefits of Whistle blowing to Shareholders & stakeholders. Therefore, the act of Whistle blowing; A.) Helps protect stakeholders from corporate negative reputation. B.)Helps managers and staffs to focus on accountability, as a result to their accountability to shareholders C.)Helps improve company’s performance, which could lead to increase in cash dividend and capital gains. D.)Helps protect employees, consumers and the public from the danger of health and safety Notwithstanding all the stated benefits of whistleblowing to various parties above, some researchers claim that the cost of whistleblowing outweighs its benefits. Some of these costs are unbearable. Many whistleblowers tend to receive a lot of negative response from organisations, families and many more. Shareholders are not let out of the threat of whistleblowing as most times they suffer a lot of financial distress as a result of whistleblowing. Below are some costs of whistleblowing to various parties.
POTENTIAL COSTS TO ORGANISATIONS
Some of the costs of whistleblowing to an organisation are; Threats to Organisational Viability; Whistleblowers serve as a form of threat to organisations as it may be seen as destructive instrument to the profitability of an organisation. Near and Miceli (1992) further believe it could be cost effective to break the law may enable organisations minimise costs and pay less for breaking such laws. Challenge to Authority Structure; Weinstein (1987) posited that whistleblowers may serve as a threat to an organisations authority structure, as a result of its difficulty to the organisation. This can also lead to deterioration of an organisations chain of command.
Unpredictability of Organisation Member Actions; The issue of Whistle blowing gives some organisations much concern as to which employee would blow the whistle and an unwarranted report may cause a disruption with one’s professional activities (Koshland, 1988). For example, fear of a student by faculty members raising issues on an undue grading.
POTENTIAL COSTS TO INDIVIDUAL (WHISTLEBLOWER)
According to Soeken and Soekan (1987), Estell (2002) and Daniels (2002), Consequences of individuals who blow the whistle includes; Been ostracised and abused by other colleagues at works Threats to his/her family members i.e. security of his/her family members are mostly at risk Such individuals attempts suicides in order to escape living in nightmare. Other consequences for the whistleblowers are; a.) Whistleblowers, in their quest for compensation to damages suffered, they tend to undergo continual litigation (Jos, Tompkins and Hays 1989) b.) They usually go through terrible financial crisis as a result of lost job and their prospect for another job is being jeopardized as a result of the person’s reputation as a traitor (Uys 2005)
POTENTIAL COSTS TO SHAREHOLDERS & STAKEHOLDERS
Whistle blowing could have both long-term and shot-term consequences on shareholders as well as stakeholders, depending on the extent of the misconduct. Most times, shareholders loose their investments in terms cash dividend and capital gains, while employees job security would be at stake, the environment could be threatened, and the consumers’ health and safety could be jeopardized. However, Bowen and Raigopal (2007) argued that Whistle blowing made known in an organisation usually leads to the downward movement, of the market’s
share price, particularly if the allegation has to do with earning reinstatement or manoeuvring of profit. Despite all the benefits and costs of blowing the whistle explained above, some whistleblowers may decide to keep silent rather than blow the whistle due to some benefits. Some benefits of keeping silent are discussed below; BENEFITS OF NOT BLOWING THE WHISTLE Whistleblowers act in order to stop or correct a wrongdoings or misconducts (Near and Miceli 1985). Therefore, keeping silent to wrongdoings can have both negative implications and positive implications on the organisations, the individual (whistleblower), as well as the stakeholder and shareholders such as employees, consumers and the public, depending on the magnitude of the misconduct. Some benefits of not blowing the whistle are briefly explained below. BENEFITS TO ORGANISATION As a result of staying silent to wrongdoing, managers of organisations may tend to correct any form of illegality or wrongdoings on time. The option of keeping silent may also give room for smooth organisational functioning, as well as avoidance of unserious complaints such as lawsuits (Near and Miceli 1992). However, BENEFITS TO SHAREHOLDERS & STAKEHOLDERS The option of staying silent may benefit stakeholders as managers of organisations are persuade from making decisions which are less risky to stakeholders. Some managers may become more careful in their decision making as a result of the fear that possible whistleblowers may analysis their actions as illegitimate. Also, another benefit to stakeholders is that when the whistle is not blown, cost associated to unserious allegations by whistleblowers are prevented. Such cost includes fees to file a legal action or court injunction. (Near and Miceli, 1989).
BENEFITS TO INDIVIDUAL (WHISTLEBLOWER) Silence is an option of least risk for individual employee who comes across wrongdoings in the workplace (Callend and Dehn 2004). Employees mostly keep quite to wrong doings at the detriment of stakeholders though, but to their own benefit. Such attitude of keeping silent to wrongdoings saves the individual from demotion, harassment at work as well as been ostracised by colleagues. COSTS OF NOT BLOWING THE WHISTLE Blackburn (1988, p9), indicated that “staying silent has negative implications for the organisation”. Also, Staying silent has negative implication on whistleblowers (individual) as well as Shareholders and stakeholders. Some costs of keeping silent are examined below COST TO THE ORGANISATION Employees who are aware of any illegality in the company and decide to keep quiet, tends to loose focus at work and pays little or no attention to their job, thereby leading to ineffectiveness at workplace. After a while, managers of organisations that execute illegal act encounter more problems. Such problem is likely to keep occurring, and in so doing organisational survival is put at stake (Baucus and Near, 1991) COST TO SHAREHOLDERS AND STAKEHOLDERS Shareholders as well as stakeholders have got different stakes in organisations. As a result of these stakes, they suffer losses when an employee decides to keep quite. The cost of keeping quite about wrongdoings is that shareholders loss all their investment when the company eventually folds up, and the stakeholders such employees suffer unemployment; consumers at times loose their lives as a results of consumption of products harmful.
PROBLEMS OF WHISTLE BLOWING Some problems of Whistle blowing as stated by Westin (1981) as follows: I. The problems of ineffectual performing employees are likely to blow the whistle in order to keep away from been sanctioned. II. The issues some whistleblowers are protesting about are not the unlawful /wrongdoings activities, but social policies by management that employees sees as foolish. III. The unclear of legal definitions of what comprises of a safe products, unacceptable treatments of employees or products dangerous to health. IV. Employees who blow the whistle can be chosen in some ways that would be unacceptably disturbing, in spite of the merits of their complaints. ORGANISATIONAL RESPONSES TO WHISTLE BLOWING Different authors such as Barnett (1992:949) and Ponemon (1994:119) purported that organisations response to whistle blowing in different ways. The following organisation response towards Whistle blowing has been described by (Baker and Dawood 2004: 134-135) as; The credibility of the whistleblower might be challenged by the organisation and hence can reduce the attention received from the public The unlawful activity can be acknowledged, and the whistleblower rewarded for his good conduct. The whistleblower can be isolated from other employees so as to avoid the flow of information. A specific individual might be selected to classify who is responsible for what, and also to receive complaints on wrongdoings. The organisation can respond to whistle blowing by punishing the whistleblower as an example to other potential whistleblower.
This was argued by Near and Miceli (1985) who refers organisational response towards Whistle blowing as it were like an incorporated and consistent response to the whistleblower by all members of an organisation. But in a further research by Miceli and Near (1992) they concluded that most whistleblowers encounter diverse responses within their organisations. These responses could be a shotterm response or long-term response summarised in the diagram below
Short-Term and Long-Term Responses/Outcomes of Whistle blowing Short –Term
Termination of wrongdoing No Policy change Long-Term Policy
change Whistleblowing g
Continuation of wrongdoing
Negative organisational outcomes Positives organisational outcomes
Retaliation against whistleblowers Reward to whistleblower No response to Whistleblower
FIGURE 1 SOURCE: Adapted from Miceli and Near, (1992)
ETHICAL ISSUES IN BUSINESS Over the last decades, business ethics has become an accepted part of management both inside and outside organisations. Just like marketers claim that everything follows from marketing or like numbers would be meaningless without accounts in organisations, so do business ethicists claim that the values and purposes matters above all else (Jones et al.2005). Nevertheless, as the
existence of wrongdoing is more evident that organisation committed to ethical behaviours pays-off. Consequently, in today’s post-Enron, management accountants as well as financial managers are expected to lay emphasis on actions that would promote ethical actions that would preserve assets and improve profits as a form of good return for shareholders (Verschoor 2003) Hence, employees owe to their organisation duty of loyalty and confidentiality, and from the management, a good ethics of corporate governance is expected of them. Ethical duty of Loyalty and Confidentiality In the last decades, due to difficulty of loyalty and confidentiality has, the issue of whether loyalty or confidentiality as a good quality of an employee or as a wicked behaviour is still been debated on by many researchers (Hart and Thompson, 2007). Vallance (1995) stated that it is difficult to set up arrangements whereby board of directors and shareholders make sure that the aim of an organisation is pursed and achieved at all cost. However, this cannot be achieved without the employees who are usually in the best position to see and know what is going on in the organisation. Now, what if employees see things which are which they believe to be wrong in the company they operate, what should they do? These and many more are some of the dilemmas of Whistle blowing where an individual is faced with the conflict of loyalty and confidentiality. Naturally, employees are taken to owe a duty of loyalty and confidentiality to the business which employs them, but do employees have a duty of loyalty to the organisation irrespective of how the company function? According to Bok (1980) whistleblowers are disloyal employees, as he/she must have sworn certain oat of loyalty and confidentiality to his colleagues and clients. Bowie (2002), in support of Bok claims that Having sworn to silence which should
be a doubtless obligation, an employees’ duty of loyalty will likely restrict him/her from reporting his employer’s or organization. Vallance (1995) argues that; employees do not really have a duty of loyalty and confidentiality. If something illegal is going on in the organisation, there is no duty of confidentiality and loyalty, and no business can, by embedded or explicit means, irrespective of the situation tie its employees to silence. Vallance further stated that where an employee does have a loyalty to the business is in making sure that the aim of the business is well achieved, but the aim will almost certainly not be served by wrongdoing. Furthermore, Tittle (2002), examines why duty of loyalty can be overridden. The promise of loyalty can be overridden if; A.)The public interest at issue is strong enough B.)The oat of loyalty was taken through deceit or force C.)The duty of loyalty is in itself wrong or unlawful The fact that one has sworn to loyalty, should not serve as a reason for an involvement in covering up crime or a breach of public trust. Therefore, the issue of being loyal is protecting the things that allow the business to achieve shareholder value over the long-term, in terms of its reputation, brand protection, the concern for its product as well as customers of such product (Vallance 1995). WHISTLE BLOWING ANDTHE ISSUE OF CORPORATE GOVERNANCE Whistle blowing is an important aspect of corporate governance. This was made clear in the high cases of scandals of Enron (2001), when sherron Watkins blew the whistle on Enron in US, and when Harry Templeton confronted his boss; the case well described as “the Maxwell Saga” (1991) in the UK and many more. All these failures and scandals were as a result of deficiency in the organisations corporate governance.
Several practices are being established daily on corporate governance. Such practices are the increase adoption of corporate whistleblower policies. Due to the adoption of these practices and policies, a clear commitment of ethical responsibilities are been asked to be exhibited by directors of different businesses. Also, for the purpose of improved performance, key staffs are also held liable for any unlawful actions and are asked to act responsibly (Olander, 2004 and Fels, 2003). As a result of several corporate scandals such as the falsified accounting policies, governments and regulators have decided to introduce stronger regulations in order to bring back the investors i.e. shareholders assurance in the financial market and also stop future collapses as a result of scandals. In different countries, the issue of corporate governance laws/rules has been properly adjusted and developed. These laws include; Sarbanes- Oxley- USA, Cadbury Report- UK, OCED principles of corporate governance and the NYSE listing standards. The OCED Principles of Corporate Governance The OECD’s (Organisation for Economic Corporation Development) developed some principles of corporate Governance that focuses on private sector (1999). This principles is to assist both OCED and non-OCED governments in their attempt to appraise and improve the regulatory framework of corporate governance. These principles were first published in 1999, and were revised in April 2004. The principles are to; I. Provide form of relationship between a company’s’ management, its board, its shareholders as well as other stakeholders of the organisation. II. Provide a well structured set of company’s objectives, the way of achieving the stated objectives, and determining how the performance is being monitored. III. Ensure a proper monitoring of management, strategic leadership of the organisation by the board, as well as the boards accountabilities to its various stakeholders.
In conclusion, from all the above explanation, developing a good corporate governance structure will enable mangers behave ethically and make decisions that profit the shareholders, as well as expose an organisation to several kinds of risks, which will enable them to maintain an optimal risk-return and therefore maximize shareholders’ value. RELEVANT LEGISLATURE REGARDING WHISTLE BLOWING LEGAL PROTECTION FOR WHISTLEBLOWERS Introduction Legal protection for employees who blow the whistle is a relatively recent phenomenon. In the nineteenth century, when there was a policy of non interference by the government, employers benefited from the fact that there was no job protection. As a result of this, they had the authority to layoff employees as long as the employees were not employed for an indefinite period, of which, whistleblowers were not free from this rule. In the 70’s, things began to change, when the legal protection for whistleblowers was slowly developed. In recent times, this legal protection has focused mainly on retaliation suffered by most whistleblowers as both the federal and state model are intended to protect employees from retaliation, or compensate them, if they have by any way suffered retaliation, but it was not adequately effected (Near and Miceli 1992). Therefore, in order to encourage Whistle blowing and compensate the individuals concerned for the risk they are prepared undertake in the UK the US, several acts, rules, and models has be developed. Some of which are briefly explained below. THE US LEGISLATIVE HISTORY /EXPEREIENCE Whistle blowing is not an entirely new issue in the USA, especially in America. While in the UK, there is yet to be a well detailed law passed dealing with Whistle blowing across the board, in the USA, a body governing Whistle blowing is not a new experience entirely (Vinten, 1994)
The issue of Whistle blowing originally emerged in the federal governments’ False Claims Act and did not from the connection with malfeasance (Miceli and Near, 1992) The False Claims Act’s influence. The Act was passed as long ago as 1863 to curb fraud during the US Civil war, by Abraham Lincoln. His aim was to end the transaction of gunpowder. The establishment of the false claims acts was to offer a form of motivation to individuals who give information about an organisation or individual, taking advantage of the government or cheat the government. In 1986, antiretaliation protection was added to the act, and the act also spelt out that 30% from the lawsuits earnings from Whistle blowing case can be shared in, by the whistleblowers. As a result of this monetary reward, some whistleblowers can choose to report false claims. Therefore, the act imposes financial penalties on whistleblowers that make false (Eaton and Akers 2007) The National Labour Relations Act of 1935 (NLRA) The National Labour Relations Act of 1935 (NLRA) was the first legislation which guards the whistleblowers. Due to the fact that protection against union related Whistle blowing by employers was not curtailed, the Federal Whistleblower Protection Model was enacted, which is commonly known as the National Labour Relations Act (NDRA) in order to guide employees involved in union-related activities and who files charges against illegal labour practices. The only problem with this act is that employees who blow the whistle in regions not covered by the act are not protected (Near and Miceli 1992) 1989 and 1994: The Whistleblower Protection Act. This Whistle blowing Protection Act was passed in 1989 and amended in 1994. The purpose of this Act is to protect from retaliation, federal employees at
workplace who engage in disclosing any wrongdoings, and later amendments is applicable to strengthen the existing protections to federal employees. This act has been carefully thought of, by the congress to help reinstate the act as well as improve protection for federal employees who leak any deceitful activity which could be of help to the shareholders and the public. The whistleblower law was agreed upon by the house of representative in 2007, as a result of their debate (Eaton and Akers 2007). 2002: SOX requirements he changes in the approach towards Whistle blowing, has brought about the changes in laws and rights associated to whistle blowing. There have been some examples given by SOX as to how most publicly traded companies has been asked to restructure their activities and approach towards crime at workplace. Further on Whistle blowing guidance are sections 806, 301, and 1107 of SOX Section 806 explains additional protection to those employees who leaks malpractices to any law enforcement agencies, or any persons of higher hierarchy to the employee. Those protected by these laws are members of the publicly traded companies. The regulation states that there is a protection from retaliation by management or contractor, for any whistleblower that helps in reporting any breach of federal law or investigation of any deceitful activity that is not in favour of the company’s shareholders. However, the regulation further states that if the whistleblower, during the course of investigating any form of violation against the federal law or violation against SEC laws experiences retaliation, he/she will be allowed compensation for damages, litigation costs, attorney fees, reinstatement of proper position. Necessary support is also made available to such employee to make him/her complete (Olander, 2004) Section 301 This section amends the Securities Exchange Act of 1934. The section compels the audit committee to take a responsibility in Whistle blowing as
well as reducing corporate fraud. The audit committee is expected to develop a device which could be used for recording, tracking, and acting on any form of information provided anonymously or confidentially by an employee. Therefore, the SOX standards is more than just encouraging companies to be more alert to whistleblowers by making mandatory various policies and protection for reporting wrongdoings. Section1107. In this section, whistleblower’s policy goes further than the protection of public corporation, but also extends protection to those individuals, corporative that report to a law enforcement officer any activity that infringes the federal law. These individuals are been protected from retaliation by the offender while acting in good faith, and any company, employers that commits this crime of retaliation, is liable to 10 years imprisonment. Sarbanes-Oxley further stated that, the audit committee of public companies, as well as securities listed on the stock exchange are the only ones obligatory to set up procedures for handling whistleblowers complaints. Shortcomings of SOX in Whistle blowing Since the endorsements of Sarbanes-Oxley 2002, there have been many debate and has been challenged on several grounds. SOX have been debated on as been unconstitutional and too costly especially for small business and foreign companies. It has also been blamed in part for reduced foreign listing on the New York Stock Exchange. (Dworkin, 2007). Dworkin (2007) further sated that the ineffectiveness of SOX was borne by statistics in the study by Earle and Madek confirmed in their study that through May 2007, about 677 complaints where done on Sarbanes-Oxley, out of which 499 were dismissed, 95 withdrawn and only 6 of the 286 cases that went to administrative law judge resulted in a positive decision for the whistleblower. This made Dworkin (2007) concluded that SOX has been unsuccessful and ineffective in encourage Whistle blowing.
THE UK LEGISLATIVE HISTORY/ EXPERIENCE The British approach to Whistle blowing –focusing on organisational and individual responsibility has demonstrated a huge success than what could have been envisaged decades ago by any of its original campaigners. By the early 1990’s, public’s confidence in many of the institutions and companies had been shaken by series of disasters and calamity. In July 1991, the collapse of the Bank of Credit and Commerce International (BACCI) was investigated and over £2 billion worth of fraud that had dodged exposure for 19 years was uncovered. This case and many more prompted public inquiries to uncover what went wrong and learn lessons for the future. As a result of these inquires, it was discovered that in most cases employees knew about the crisis, but most were frightened to speak while some turned blind eyes to the crisis. After all these, acts where developed in the UK, such as the Public Concern at Work (PCaW)- the charity behind much of the work done on Whistle blowing in the UK, and the Public Interest Disclosure Act (PIDA), also known as “whistleblower charter”. The PCaW and the PIDA, would be examined further in this study Public Concern at Work Public Concern at Work was launched in 1993 “to tackle Whistle blowing”. One of those behind this new organisation is its present director, Guy Dehn, who had strong legal, consumer protection and policy backgrounds. The aim of this independent charity is to respond to the outcry of disasters, frauds and scandals that could have been avoided if the legitimate concerns of employees are been heeded to. The goal is to give employees confidence to raise concerns at work place without fear and also to encourage employers to listen to them with the intention of supporting them. The foremost response of this independent charity is to set up a confidential legal helpline to give employees/individuals with concerns advice about malpractices, risks or danger at work. Fundamental to making Whistle blowing work and vital to the charity’s responsibility is;
A.) To provide free and confidential help to people who are insecure about whether to raise a concern about wrongdoing; B.) To train and support organisations on Whistle blowing and accountability in the modern workplace; C.) To educate the public, about safer alternatives to keeping silent; and D.) To effect good management, governance and regulation.
THE PUBLIC DISCLOSURE INTEREST ACT (PIDA) 1998 The Public Interest Disclosure Act (1998) commonly known as the “Whistle blowing Act” which came into existence as result of the amended Employment Right Act of 1996, was introduced as a private member’s bill, and was also endorsed in the commons by the conservative MP Richard Shepherd. This act was established in order to give support to whistle blowing across the private, public and voluntary sectors. The acts also protects from unfavourable action or victimisation from their employers if, the whistle is blown in the interest of the public. Ref OVERVIEW OF THE PROVISIONS
In order to be protected, the act applies to employee’s that raises authentic concern on information about the following categories; a criminal offence, a failure to comply with any legal; obligation, a miscarriage of justice, danger the health and safety of any individual, environmental damage, and the concealment of deliberate information of any of these matter.
Asides the employees covered, the act also covers workers, co-workers, trainees, home workers, police officers, and every professional in NHS.
In order to be protected, disclosure must be made in good faith. This appears in ss 43e -43h. Basically this means that a concern can be properly addressed if made honestly. Therefore, a required disclosure must; • • • Be made honestly, even where it is made casually or without due care; Not be for personal gain; and Must be made in reasonable belief that the disclosure and any other claim is true A disclosure in good faith can be rendered invalid for some other main unsuitable motives.
The issue of whistleblower’s motive: Goode (2002), argue that the motive of the
whistleblower ought to be related to the result as to whether or not to investigate the matter, suggesting that an investigation into motive will prevent making a disclosure in bad faith. Fels (2003) further stated that the motive of the whistleblower is sometimes crucial for assessing reliability, in order to have an effective plan.
VICTIMISATION AND DISMISSAL
When the act is violated by the dismissal or victimisation of the whistleblower, the employee can file a claim to an employment tribunal for compensation. An employee can also be compensated for injury to feeling when victimised (but not dismissed) and when dismissed/sacked can within seven days seek interim relief so that his employment continues until the full hearing.
EXCEPTIONALLY SERIOUS MATTERS
If an exceptionally serious matter is reasonable and meets the test for regulatory disclosures, it will be protected in as much as such disclosure is not made for personal gain.
Gagging clause in employment contracts and severance agreement are null and void as long as they conflict with the acts protection. SHORTCOMINGS OF PIDA The PIDA has been said to be imperfect and very complex. Some of the weaknesses of the PIDA as outlined by De Maria (2002) are as follows; • • • The exclusion of non-employees and security personnel The omission of trade unions as a prescribed disclosure channel; Its limited disclosure routes and the lack of provision for the influence of a culture of secrecy, and its promotion as well as its implementation. According to some researchers, out of 1,200 employees who have lodged complaints on victimisation, over half were unsuccessful. This also concerns the PCaW. Therefore, we can conclude that the success of PIDA is minimal. CONDITIONS FOR JUSTIFYING A WHISTLE BLOWING ACT Hunt (1997) claimed that the criteria for justifying a Whistle blowing act revolve around some issues such as the disclosure, the reason for it, and the motives which lie behind it. At times, Whistle blowing is justified and at times not justified. But where firm minimal conditions are met, it would be sensible to claim that Whistle blowing be justified .A justified disclosure according to Bowie(1982), is one which; The act whistleblowing must be suitable ethical motives for avoiding unnecessary harm to others; The whistleblower must have exhausted all the internal measures for correcting the perceived misconduct, before opting for public disclosure; The whistleblower must perceive that the violations or misconduct will be of serious danger;
The action of the whistleblower must be in line with his or her responsibilities designed to expose or avoid any breach of ethics; The actions of the whistleblower must have some sensible likelihood of success.
Davis (1996) argues that justifying whistleblowers act is irrelevant except the act is been thought, as wrong. Also we do not have to justify the act of whistleblowing because as far as the act is wrong, justification is impractical. He further argues that the act of blowing the whistle does not prevent much harm, therefore, if whistleblowers must have good reasons to believe that revealing the threat will probably prevent harm, then the history of whistleblowing virtually rules out at the moral justification of whistleblowing.
3. CASE STUDIES
3.1Introduction This section gives a summary on true life cases on the whistleblower as well as the response of the organisation to the disclosure. For the purpose of this study, four true life cases on Whistle blowing in the UK and the USA would be examined. This includes cases between; 3.2 NETCOM CONSULTANTS (UK) VS FERNADES (2000) 3.2.1 The Company Netcom Consultants was started operations in 1993, and it has business in Sweden, Singapore, and also throughout Asia and Africa (through Millicom, they sit on sit with operators in Asia and Africa).The company has since than, rapidly expanded, with its founder shareholders remaining active directors in the business. The company specialises in offering different services also provide solutions to financial and media sector such as consultants in network, technologies, billing, and services developments. Due to the wide use of internet, the company is highly developed and has become wider in its activities to other sectors, thereby, making it gain a strong telecom market position.
3.2.2 The Whistleblower i.e. the Scandal The case between Fernandes, the Chief Financial Officer (CFO) for the UK arm of Netcom, and Netcom Consultants took place over 1999 &2000, when Fernandes found himself in a very complex and difficult situation of morals and ethics. The problem started when the UK Chief Executive Officer of Netcom (CEO) Mr Stephen Woodhouse started giving his payment claims to the CFO without receipts, of which Mr Fernandes (CFO) was the person accountable for the
monies been spent by the CEO either through the company’s credit card or by cash. The CEO claimed that the receipts were all kept in a large box which would be handed in to the CFO later, which he never did. In 1997, when this action by the CEO persisted, the CFO could not handle it any more, so he decided to fax a letter to the US contact, raising concerns about the large sum of money claimed to have been spent by the CEO without receipts, where he was told to turn a blind eyes. In 1999, the CEO’s expenses increased to about £371,000, all without receipts. It was later realised that the CEO has been using the money to pay for his personal expenses, thereby putting his own satisfaction above that of others. Thereafter, fernandes decided to put into practice his moral duty, by blowing the whistle on Woodhouse’s actions as a result of cashflow problems which led to the non payment of corporation tax in the organisation. Fenandes put in writing his concerns to the US board members, Luxembourg as well as his UK team members as he could not keep it anymore. Some weeks after his disclosure, Fernandes was interrogated and was released from employment with no form of compensation, on the basis of his refusal to pay the corporation tax and the misuse of unauthorized sum of £317,000 by the CEO. Mr Woodhouse, despite his deceitfulness, was allowed to retain his position. 3.2.3 Result/ Outcome Fernandes was totally supported by the courts and eventually succeeded under the Public Disclosure Act 1998 (PIDA) claims, as one of their duty is to give legal protection to employees who are been dismissed from work as a result of blowing the whistle against his employer/organisation. At the age of 58, Fernandes won the case of interim relief. At this age, he was unable to secure a job and thereby, awarded the sum of £293, 441 as compensation. The CEO later resigned from work and left the organisation (Mason, 2000 and Eaglesham, 2000)
3.3 ENRON VS SHARRON WATKINS 3.3.1 Background Enron was one of the world’s largest energy, commodities and Services Company. It was formed in July 1985, in Houston, Texas. This company was formed by the merger of Houston Natural Gas and InterNorth of Omaha, Nebraska in 1985. In 1999, Enron had expanded into diverse fields such as the purchase of power plant, the building of retail or wholesale business around the world, which enables the company provide financial and risk management services to customers worldwide, and also the launching of a web based commodity site, well known as Enron Online, thus making it an e-commerce company. As a result of this expansion, the company successfully recorded revenue of a revenue of $100 billion in 2000, thereby making it the seventh-largest company on the fortune 500, and the sixth largest energy company in the world. 3.3.2 The Whistleblowers’ Story (Enron’s Scandal) Sherron Watkins the former vice president of Enron Corporation in spite of the company’s rapid growth and success knew all was not well with the organisation’s account, as she suspected an overstatement of the company’s key assets. In 1996, Ms Watkins made her concern known to Mr Festow, Enron’s Chief Financial Officer (CFO) and the company’s auditor Arthur Anderson, but she was ignored and told off for intruding into accounting matters when she was in the finance department. In October 2001, Watkins realized that the CFO had set up a series of companies to do business with Enron such as the LJM and other off-the-books partnership in an attempt to inflate their profits and a means to put out of sight Enron’s growing losses of the company at the detriment of the company’s shareholders. Later, Watkins realized the level of fraud going on in the organisation, so decided to blow the whistle on the company’s dangerous financial deals, by sending a
memo to the CEO Ken Lay of gross misconduct as regards to accounting irregularities within the organisation. The CEO promised to look into the matter, where he discovered nothing wrong with the company’s accounts. When the CFO heard of Watkins word of warning to the CEO, he tried to dismiss her. In November, Enron admitted to have overstated its profit dating back to 1997 by $600 million. 3.3.3 Result/Outcome In December, the Enron was filed for bankruptcy, its value which was at $80 billion some time ago, became a penny stock. Enron’s employees were made redundant as well as pensioners. Watkins kept her job until November 2002 when she left the job to become a corporate governance consultant. She stayed longer in the company then CFO who ought to be fired, but resigned, and the company’s auditors who did not quit, but waited to be fired. Watkins was praised for the part she played in revealing the greed and dishonesty of the once seventh largest company in America. She also received several awards for her excellent display of ethics at work place, and was named Times Person of the year 2002. 3.4 JEFFREY WIGAND VS BROWN & WILLIAMSON TOBACCO 3.4.1 Background Brown & Williamson Tobacco Corporation a subsidiary of British America Tobacco plc and the third largest manufacturer of cigarettes in the United States was founded in 1894 in the Tobacco Heart of Winston-Salem, North Carolina and incorporated in 1906. The company has oversees operation in Japan and South Korea, and it possesses about 16% of the US cigarette market. It also put on the market
several mixed brands of cigarette, as well as special line of tobacco products such as; Kite and Sir Walter Raleigh Bloodhound.
3.4.2The Whistleblower (Jeffrey Wigand) Jeffery Wigand popularly known as “the insider” started work with Brown & Williamson in 1988 as the company’s head of research and development, with a primary project of developing a new, to put into competitive market cigarettes that are healthy. During the course of his assignment, Wigand discovered the company has been deceiving consumers about the Tobacco rhythm “increased biological activity” which was a form of code for cancer and diseases, and also the highly additive nature of nicotine used to improve flavour of cigarette, causes cancer. As a result of his discovery, in 1992, Wigand refused the usage of these deadly flavours in cigarettes, but he was told the removal of the flavour would affect sales, and was asked to mind his business. In 1993, Wigand was fired and was to face lawsuit on the basis of breaking his agreement of confidentiality which is not disclose any of the company’s policy. After his dismissal, Wigand decided to blow the whistle publicly. He testified about the illegality going on in the tobacco company, by telling the public of the harmed caused by nicotine in cigarettes it is causing to smokers. In addition, he disclosed that the Thomas Sandefur (CEO) lied under oath by telling the congress nicotine was not addictive (Esperon 2005).
3.4.3 Result / Outcome Wigan lost everything for going public. He lost his wife as she filed for divorce, lost his kids to the wife, lost his privacy, and his reputation was damaged. It took him time to heal, but he had to start all over again.
Also, his testimony has brought about $206 billion settlement between the tobacco company and 46 US states for the costs of treating sick smokers. At the present, has been given so many awards and public recognition for his achievement in revealing helpful information about tobacco’s illegality, which was detrimental to public’s health. 3.5 HARRY TEMPLETON VS MAXWELL “THE MAXWELL SAGA” 3.5.1 Background Robert Maxwell was an international legend who owned several UK’s national newspapers, which includes the Mirror Group of Newspapers and the Maxwell Corporate Communication (MCC). Maxwell Corporate Communication (MCC) established in 1987, was incorporated as British printing corporation in1964, with over 14,000 employees and over 15 publishing business in more than 15 countries. The Company has interests in providing information for publishing electronic services in school and college publishing, language instruction, and reference book and professional publishing. This company was the tenth largest media and publishing company in British. 3.5.2 The Scandal Harry Templeton had worked for 14 years in Glasgow for the Mirror Group title – The Daily Record and The Sunday Mail, as a printer operating the presses owned by Robert Maxwell’s Mirror Group. Robert Maxwell was disqualified by many as well as Templeton on his bid to take-over Leasco Data Processing Equipments of the United States. His was criticised on the basis of manipulation of profits by the Department of Trade and Industry (DTI) reported in Pergamon Press Ltd. But Maxwell who had carefully surrounded himself by well- connected politicians, bankers, financiers and accountants aggressively took over to become the CEO of Mirror Group of Newspapers (MGN) and Maxwell Corporation Communications (MCC). But this
company was built on millions of debt and fraud loaned from employees’ pension fund. Afterwards, Templeton was appointed as one of the company’s board of trustees of the Mirror Group Pension Scheme. After Templeton’s appointment, he began to discover some unusual movement of pension’s monies run by the Maxwell’s businesses; and he became the only trustee challenging Maxwell’s misuse of pension funds assets to support the share price of his own company. A meeting was held with Maxwell by Templeton and other Scottish delegates to make aware of their concerns where Maxwell denied every request on the misuse of pension’s fund. This led to Templeton dismissal in 1988, and Maxwell vowed Templeton would never get any printing job again. Maxwell was allowed to go on with his preferred evil path until his death in 1991. After his death, it was later discovered that he had embezzled the sum of £458 million from various pension funds (Calland and Dehn 2004) 3.5.3Outcome/ Result This Scandal led to the unfortunate death of many pensioners as they were worrying about the ability to manage financially when pension payments they relied upon were either suspended or stopped completely, many pensioners suffered, while a few received compensation. Shareholders and employees where not left out in the disaster, as they also suffered financial problems. The company was insolvent and will be liquidated to pay £2.5 billion in debt. This was also reported as one of the largest UK’s fraud cases. Templeton is now the Scottish Director of Public Concern at Work and continues to support of Whistle blowing. (Calland and Dehn 2004 and PCaW). visar.csustan.edu/aaba/auditmaxwell.htm - 16k -
4. ANALYSES AND DISCUSSION
4.1 Introduction This session presents a synthesis of the study, taking into deliberation the selected case studies which are the cases of Netcom, Enron, Maxwell and Brown &Williamson Tobacco and analysing the cases. Our analysis would be based on the implication of Whistle blowing to their various shareholders as well as the organisations involved, and also picking the theories and comparing them side by side with the selected cases, and drawing a conclusion. 4.2 Was duty of Loyalty and Confidentiality breach or Honoured? The issue of loyalty and confidentiality is still been argued on, as either a good quality or a wicked act of an employee by researchers Hart and Thompson (2007). Every organisation is expected to have laid down rules and regulations in form of business ethics that would entail employees’ duties, and this should be binding on all members of an organisation. This makes employees owe to its organisation the duty of loyalty, confidentiality, morality, to mention a few before taking up a job. The awareness of these duties will not permit employees disclose any information of the company to third parties or expose company’s information to its competitors. Hence, any employee that refuses to comply with organisations duties as stated earlier can be regarded as a disloyal employee and should be punished. According to Bok (1980), any employee who blows the whistle is disloyal, as he/she must have sworn an oath of confidentiality and loyalty to colleagues and clients. Despite all duties which employees are expected to comply with, Vallance (1995) argues that there is no duty of confidentiality and loyalty, and no business can, by embedded or explicit means, irrespective of the situation tie its employees to silence. Therefore, the issue of loyal is based on protecting the things that allow the business to achieve shareholder value over the long-term, in terms of its
reputation, brand protection, the concern for its product as well as customers of such product. Using the case of Brown and Williamson Tobacco Corporation, Jeffrey Wigand the head of the company’s research and development department raised his concerned within the company about his discovery of highly nature of nicotine in cigarette, but was asked to mind his business as the nicotine in cigarettes boosts sales. He had to blow the whistle in order to create awareness of the danger in smoking, hence, making him disloyal. Another similar case where employees’ loyalty was questioned is in the case of Netcom, where Fernandes blew the whistle, a disloyal act though, but at the same time it was an action that saved the organisation and its shareholders & stakeholders. As a result of the two whistleblowing cases, Fernandes and Jeffrey Wigan were justified based on what the theory as they owe the public an utmost duty of loyalty therefore they should be rewarded as their disclosures were made in good faith. Also, any other whistleblower that discloses misconduct in the interest of the public in good faith should also be rewarded. However, any employee that discloses misconduct for selfish motives making him/her a disloyal employee should be reviled. 4.2 The misconduct must be seen as serious danger? The issues surrounding the justification of whistleblowing are the reasons for it, and the motive that lie behind the action (Hunt, 1997). Every whistleblower’s action need to be justified, and one of the conditions justifying whistleblowers action is that the perceived wrongdoing is expected to be of serious danger before deciding to blow the whistle. This serious danger could be danger to health, the organisation, or to shareholders of the organisation. Although Davis (1996), argued that justifying whistleblowers action is irrelevant. Using the cases of Fernandes, Templeton (Maxwell Saga) and Jeffrey Wigand to justify this review of literature, we can see that Fernandez decided to blow the
whistle because company’s fund had been spent carelessly by his boss, and as such affect employees, shareholders and other members of the organisation in the long run. Templeton on the other hand knew pensions funds was misused and diverted to support share price of Maxwell’s own company. The same as Wigan when he discovered keeping silence to his company’s misconduct would result many smokers loosing their lives as a result of cancer. All three whistleblowers recognize that if illegality in their various organisations is not reported, several parties would be in serious danger. Such parties are the; shareholders, pensioners, employees and the organisations itself. However, in as much as a whistleblowers’ action tends to save people from serious danger in the future, they should be rewarded, but if any whistleblower goes against this, such whistleblower should be reviled. Is the whistleblower’s action in line with his/her responsibilities? According to Bowie (1982), one of the ideal requirements for justifying whistleblowers act is that the whistleblower must act in accordance with his or her responsibilities for exposing illegality. Whistleblowers are expected to raise concern or expose wrongdoings that are related to their duty, not just expose illegality they know nothing about. Fernandes was able to raise concern and expose the actions of his boss because he was the company’s chief accountant; one of the responsibilities of an accountant is to monitor financial matters including the inflow and outflow of cash in and out of an organisation. On the other hand, Watkin knows nothing about finance, as she was the vice president, but decided to blow the whistle because she discovered the companies account was been overstated. Her disclosure was not in line with her responsibilities.
From the above analysis, we can say that Fernandes action could be justified, since he did not blow the whistle on what he knew nothing about. Unlike Watkins, though there were illegal actions taking place in Enron, but it was not in line with her responsibilities. Therefore, we can say that Fernandes should be rewarded as his actions were justified, but Watkins should be reviled as her actions did not meet the condition for justifying whistleblowing. Consequences to Organisation, Shareholders and Whistleblowers. Shareholders are regarded as fund raiser for organisation; thus any decision made in an organisation must be of great benefit to them this should include the decision to blow the whistle which should also be of great benefit rather a cost to the shareholders &stakeholders, the organisation and the whistleblowers. Near and Miceli (1992) posited that some of the short-term outcome of Whistle blowing is that wrongdoing might be continued, ignored, rectified and at times the whistleblower is retaliated against, while in the long-term Whistle blowing could bring about negative organisational outcomes or positive organisational outcomes. Considering the case of Netcom vs. Fernandes, it was evident that Fernandes decided to blow the whistle in order to stop the action of CEO who embezzled the company’s fund for personal expenditure at the detriment of the owners (Shareholder), stakeholders and the organisation. Fernandes action was criticised though, as in the short-run his action was of more cost to shareholders, the organisation and the whistleblower than benefits. It was evident that Fernandes was dismissed short-term, but was later rewarded as the action was rectified. His action in the long-term eventually helped brought about positive organisational outcomes, as Netcom regained its reputation in the market and thus enhanced shareholders value.
On the other hand, the case of Enron is a bit different. Enron decided to overstate its account in order to have a good reputation in the market as well as to enhance shareholders value, but at the end, their action completely ruined the company’s shareholders value and other stakeholders as the company finally liquidated. Sharron Watkins the vice-president of Enron Corporation blew the whistle after many damages had been done. Her action in the short-term brought about no response to the illegal act neither was the act rectified. But instead Sharron’s action in the long-run caused the shareholders and stakeholders more harm than any good as shareholders lost all there investments and employees were lay off without pension nor compensation. If only she had kept silent, maybe there would have been room for correction, and maybe Enron would not have liquidated. Near and Miceli (1992), stated that the option of keeping silent may give room for management of an organisation to correct the wrongdoing. This might have been the case of Enron. Based on both cases, Sharron blew the whistle not for the sake of the shareholders &stakeholders interest, but to protect her reputation. Thus, such action does not deserve any form reward, because the cost of her action outweighs its benefit. But Fernandes action was at his detriment and in the interest of all i.e. (shareholders, stakeholders and the organisation). The benefit of his action outweighs the cost and should be rewarded again and again as the company still stands strong till date due to his actions.
Ethics of Corporate Governance On account of several accounting scandals, practices of corporate governance is been established on a daily basis, as management of organisations owe an ethical duty of good corporate governance to its shareholders and stakeholders. According to Olander (2004) and Fel (2003), a clear commitment of ethical responsibilities is expected to be exhibited by management of different organisation in order to improve performance. From the cases of Maxwell Saga and Enron Corporation, it is evident that both companies fell as a result of the lack of good organisational corporate governance. Templeton the company’s printer was the only employee bold to confront and raise concerns to the CEO (Maxwell) over the misuse of pension’s fund. All his action was in the interest of pensioners, same applies to Enron as deaf ears were given to the whistleblowers. One of the developed OECD’s (Organisation for Economic Corporation Development) principles of corporate Governance is that corporate governance should provide form of relationship between a company’s’ management, its board, its shareholders as well as other stakeholders of the organisation. Judging from what researchers have said about corporate governance what actually happened in the case of Maxwell Communications and Enron Corporation, we can see that both organisations exhibited no ethical responsibility to corporate governance and their action were based on corporate greed and selfishness as the CEO’s never conformed to the principle of corporate governance. Both companies lacked the ability to carry out a good ethical decision and at the end of their inability to conform to the value of good corporate governance principles, woeful performance of both companies as to stakeholders were badly hurt and shareholders value totally diminishe
4.4 Are Whistleblowers Protected? Legal protection has been put in place to protect employee from retaliation, or compensate them if the by any way suffered retaliation (Near and Miceli, 1992) Therefore, in order to encourage Whistle blowing and compensate the individuals concerned for the risk they undertake or are prepared to undertake in the UK the Public Interest Disclosure Act (1998), was established to give support and protect whistleblowers in the private, public and voluntary sector from unfavourable action or victimisation from their employees if, the whistle is blown in the interest of the public. Fernandes is the employee that blew the whistle against his boss, as a result of his mismanagement of fund. Fernandes action to exhibit his moral duty of Whistle blowing led to his release from employment without any payment and was sued. Due to the establishment of the PIDA to protect whistleblowers from retaliation, as Fernandes was supported under the Public Interest Disclosure Act (PIDA) and was compensated with the sum of £293,441 because his action was in the interest of the public. Therefore, we can say that the establishment of the PIDA is indeed of great benefit to whistleblowers, though it has its shortcomings, but it still stands as great protection and a means of encouraging potential whistleblowers.
5. CONCLUSIONS AND RECOMMENDATIONS
5.1 INTRODUTION The spotlight of the study is based on whether whistleblowers should be rewarded or reviled with reference to selected case studies. In the preceding four chapters, the statement of problem was introduced; the research objectives were also defined. Second, theories from the significant literature were reviewed. Third, based on the review of literature, selected case studies were examined. Fourth, theories from our literature review and some selected case studies was analysed and discussed side by side. This last part concludes the research by examining the conclusion and recommendation for future research on this study. CONCLUSIONS After all that has been discussed above, we can conclude that all whistleblowing cases are different, therefore, we can never have a standard to whistleblowers should be rewarded or reviled. If all whistleblowers are to be reviled, then there would be injustice because those who blow the whistle in the interest of the public i.e. with good motives will suffer. On the other hand, if every whistleblower is to be rewarded, then those who blow
the whistle for selfish interest or for the purpose of fame will go unpunished. The most important thing for an organisation to do is to good corporate governance that should be followed REASONS FOR IMPLEMENTING WHISTLE BLOWING POLICY Whistle blowing policy/procedure should be implemented not only by management of organisations, but it should also be implemented in universities, non-profit making entities, as well as government entities (Eaton and Akers, 2007). Lewis (2006) examines reasons why management of various organisations, entities and institutions should desire to create and implement a Whistle blowing policy. These reasons are; To contribute to the efficient and effective running of the organisation, by discouraging management or individuals from malpractice and instilling the fear of its consequences. To help keep up the good name of the organisation by providing a means of justifying ones action/decision. It can help reduce public disclosure as a result of proper conformity with the law. It is a good practice that needs to be implemented as its benefits outweighs its cost. Furthermore, this policy when implemented has a great possibility of reducing fraudulent activities in addition to the fact that it sends good indication to both internal and external bodies such as its stakeholders (Eaton and Akers 2007). Olander (2004) also stated that the policy should be implemented so as to tackle the issue of reporting violations of the code of conduct. The policy is also to ban unlawful action of any kind. Despite the fact there exists the needs, by employers to have high values of ethical conduct in their mission statement, this goal was hard to achieve as the
method of Whistle blowing procedure/policy were recently hardly ever used. UK employees are not usually forced by the Public Interest Disclosure Act 1998 (PIDA 1998) to create the Whistle blowing policy, but several benefits are usually given to those who have them. The Public Concern at Work (PCAW) (1998), states that “unless there are effective procedures in place which demonstrate your organisation’s willingness to listen and address concerns, employees are likely to take their concerns outside – and to be protected by the Act in doing so. Employers with good Whistle blowing policies and procedures are less likely to be exposed to claims under the Act. Additionally, it is less likely that any wider public disclosure will be protected under the act”. DEVELOPING A WHISTLEBLOWER POLICY Organisations should have an appropriate policy in place which should serve as guideline to be followed by employees if any malpractice is suspected. Employees, as well as accountants and internal auditors, are all expected to go behind these policies. (Elliot and Elliot 2007) Management may possibly decide to draw up and put into practice a whistleblower policy. In developing this policy, a clear definition of Whistle blowing must be stated. Before this policy can be properly implemented, it must be submitted to the board of directors, audit committees as well as the nonexecutives members who are usually the shareholders representatives. Other important aspects or (view points) of a whistleblower policy examined by Eaton and Akers (2007), includes the following: • Clear definition of individual covered by the policy;
A whistleblower policy has to cover persons within and outside the organisation as long as the outsider performs business with the organisation. For example, for a manufacturing company, those covered may include employees, employers, suppliers, customers as well as shareholders. • Confidentiality
Another important element of any whistleblower policy is the aspect of confidentiality. This issue is mostly of great concern of many individuals, because employees crave for an environment whereby he/she is free to raising any false claim, and if such environment is created, maybe many more claims will be reported and filed. Then again, employees want to feel open to submitting their names for any further investigation. Therefore, the Whistle blowing policy has to clarify how claims will be treated when received and whether any feedback should be expected by employees. • Communication For a whistleblower policy to be well effective and efficient, it must be properly communicated to employees, customers, suppliers and shareholders. All these stakeholders must have assess to information on intranet sites, and training programmes could also be made available to them on how to answer questions of Whistle blowing policy. • Process
For employees to file their claims, a due process needs to be followed. This process must be well stated in the whistleblower policy. Organisations may oblige employees not to omit any chain of command when trying to make any claim. Employees filing any claim can also do so by using reporting mechanisms such as hotlines, websites or suggestion box. • Nonretaliation provisions
As a result of whistleblower policy, employees who report any crisis ought to be prohibited from retaliation. Therefore, ways by which employees, customers, suppliers as well as shareholders should be to report fraudulent actions or file claim in good faith must be stated in the whistleblower policy, as this will serve as a means of encouraging them. As soon as the policy is been concluded, the organisation ought to be consistent with the policy as regards to the implementation and enforcement mechanism.
In conclusion, to create an atmosphere for a whistleblower to file his/her claim or report a wrongdoing is a very difficult task. Therefore, for a wholly successful whistleblower policy, it must be consistently implemented, the claims must be well investigated and evaluated and proper action must be taken when required.
Ettore (2004) view the act of whistleblowing as when individuals earn themselves unfavourable nickname such as “rat-rink”, “snitch” as a result of their mindset on the concept of informing versus loyalty. Calland and Dehn (2004) also described it as the disclosure of wrongdoings that threatens others, rather than an individual/personal injustice.
Uys, T. (2005) Betrayal, loyalty &trust: The social psychology of whistleblowing. Paper read at the international Institute of Sociology: Frontiers of Sociology , Stockholm, Sweden 5-9 July 2005 Jos, P.H., Tompkins, M.E., & Hays, S.W. (1989) ‘In praise of difficult people: a portrait of committed whistleblower’, Public Administration Review, November /December: 552-561 Finn, D.W. (1995) ‘Ethical decision making in organisation: An employeeorganisation whistle-blowing model’, Research on Accounting Ethics 1, 293-315 Barnett, T. (1992) “A preliminary investigation of the relationship between selected organisational characteristics and external whistleblowing by employees” Journal of Business Ethics 11:949-959 King, G. 111 (1999) ‘The implication of an organisation’s structure on whistleblowing’, Journal of Business Ethics 20: 315- 326
Somers, M.J. and Causal, J.C. (1994) ‘Organisational commitment and whistleblowing: A test of the reformer and the organisation man hypothesis’, Groups & Organisation Management, 19(3), 270-284 Dehn, G. (1999) Whistleblowing to combat corruption. Public Concern at Work. Available online at: http://www.u4.no/document/literature.cfm?key=40. (Accessed: 24th march 2008). Binikos, E. (2006) A sociological case study of the relationship between organisational trust and whistleblowing in the workplace. Unpublished masters dissertation Johannesburg: University of Johannesburg Westman, D.P and Modesitt, N.M. (2004) Whistleblowing: The law of Retaliatory Discharge 2nd edn. Washington: BNA Books. Bowie, N. (2002) The Blackwell guide to business ethics. Blackwell Publishing. Langford, J.W and Allan, T. (1994) Corruption character and conduct: Essay on Canadian Government Ethics. Toronto Ont: Oxford University Press, 1994. Lewis. D.(2006) The Content of Whistleblowing /Confidential reporting
procedures in the UK. Some lessons from empirical research; Vol.28, No. 1 2006 pp 76-86 Lewis, D. (1998) “The Public Interest Disclosure Act 1998”, Industrial Law Journal, Vol.27 No.4, pp. 325-330. Elliot. B. and Elliot. J.(2007), Financial Accounting and Reporting, 11th edn. Pearson education limited. Dr. Romulo, E.A (2006) Stakeholder’s Awareness, Attitudes and Concerns regarding whistleblowing
David, A. (2005) Whistleblowers: Who they are and how management should respond. Journal of Relevant Business Information and Analysis, Vol.8, Issue 4 Iannone, A.P. (1989) Contemporary Moral Controversies in Business, Oxford University Press, Oxford and New York. Hoffman, W.M and Moore, J.M. (1982) ‘What is business ethics? A reply to Drucker’, Journal of Business Ethics, Vol. 1, no.4, pp.293-300 Orr, L.H. (1981) ‘Is whistleblowing the same as informing?’ Business and Society Review, fall, pp.4-17 Winfield, M. (1990) Minding your Own Business. Self-Regulation and Whistleblowing in British Companies, Social Audit, London