Читать книгу In Search of a Model for the Legal Protection of a Whistleblower in the Workplace in Poland. A legal and comparative study - Lukasz Bolesta - Страница 10

Introduction

Despite the fact that the world has paid more and more attention to the activities falling within the category described as “whistleblowing,” there is no single common and universally accepted definition of this phenomenon. Individual international organizations and doctrine representatives often take different positions, e.g. when it comes to the limits of permitted activities or the subjective scope of people who may provide information on irregularities. Moreover, in individual countries, we may observe different attitudes toward the very essence of whistleblowing. Its evaluation depends, among others, on historical, cultural, and social conditions.¹ For example, American society, post-Soviet countries, including the period of German occupation during the Second World War have all completely different historical experiences. The informants were then clearly perceived negatively, as “rats” or “snitches.”² Therefore, in some countries, the distinction between an ethical informant and a negative informant is often blurred.

The concept of whistleblowing is derived from the English expression “to blow the whistle” and was related to alerting police officers and passersby about the escape of a perpetrator from the crime scene.³ Literature offers also another interpretation, according to which the above term can be associated with the world of sport, where it is necessary for a referee to intervene when players break the rules of the game.⁴ Generally speaking, the ←11 | 12→essence of whistleblowing is to communicate information about irregularities, e.g. in the workplace, to persons or entities capable of taking effective action to stop such practices. The 1985 definition of whistleblowing by Janet P. Near and Marcia P. Miceli reads, “the disclosure by organization members (former or current) of illegal, immoral or illegitimate practices under the control of their employer, to persons or organizations that may be able to effect action.”⁵ According to another definition, whistleblowing is an act of an employee or senior executive of any institution, whether that it is profit or not, private or public, which means public disclosure of an instruction to perform an act that could harm a third party, violates human rights, or is inconsistent with the stated purpose of the organization.⁶ It is also worth mentioning the definition of the International Labour Organisation, according to which whistleblowing is: “the reporting by employees or former employees of illegal, irregular, dangerous or unethical practices by employers.”⁷ Transparency International, a leading NGO working to prevent corruption uses yet another definition. According to it the phenomenon in question relates to: “the disclosure or reporting of wrongdoing, which includes corruption, criminal offences, breaches of legal obligation, miscarriages of justice, specific dangers to public health, safety or the environment, abuse of authority, unauthorised use of public funds or property, gross waste or mismanagement, conflict of interest, and acts to cover up any of the aforementioned.”⁸

There are also a number of other definitions of whistleblowers. Whistleblowers may be defined as, “people who draw attention to corporate wrong doing either by reporting to superiors or even going outside the ←12 | 13→organisation.”⁹ On the other hand, the Article 33 of the United Nations Convention against Corruption¹⁰ stipulates that a reporting person is someone “who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention.” In the opinion of Transparency International, a whistleblower can be any worker of public or private sector or a different person,¹¹ who knows about any wrongdoing and is at risk of retribution.¹²

Disclosed information may involve various types of abuse. As it stands in the results of research,¹³ the activity of whistleblowers is one of the most effective instruments for detecting irregularities in organizations. Early report on irregularities can often prevent or reduce damage. The activity of whistleblowers may be the only chance to detect unwanted incidents, such as corruption, financial fraud, mismanagement or violation of employee rights. From the point of view of this study, the latter aspect is of great importance. It may involve e.g. violation of occupational health and safety regulations thus affect the life or health of employees.

The interest in whistleblowing and recognition of its benefits led many countries to the adoption of specific provisions regulating the rules of reporting irregularities.¹⁴ However, in many legal systems, including the Polish one, there are still no regulations enabling whistleblowers to act without fear of negative consequences. There is no doubt that due to the specificity of the undertaken activities and the very nature of whistleblowing, whistleblowers are exposed to various forms of retaliation by entities at ←13 | 14→whose disadvantage they act.¹⁵ In the case of employer-employee relationship, we can distinguish among dismissal, harassment, and discrimination. There is also a risk of liability for violation of personal rights and disclosure of confidential information. Due to the lack of legal protection, many people resign from taking action for fear of conflict with their employer. Moreover, it is very significant that despite the benefits of whistleblowing for society and organizations, the opinions on whistleblowers are still very divided and their activities are subject to different reactions in the environment.¹⁶

In order to illustrate the significance of the discussed issue, it is necessary to present a few cases of whistleblowers’ activity. One of the most famous examples is related to the collapse of the Enron Corporation.¹⁷ Before the bankruptcy, the company employed about 22 000 people and its turnover in 2000 was about 100 billion USD.¹⁸ Moreover, the general public perceived it positively, as evidenced by a number of awards it received.¹⁹ In August 2001, Enron Vice President Sherron Watkins submitted to the President a six-pages-long note on irregularities in the management and accounting of the entity, believing that the President would solve the problem.²⁰ However, the message was completely ignored. After the opening of an investigation, the note written by Sherron Watkins was one of the most important evidence. The literature stresses that her actions could not save the company, but she nevertheless became a symbol of “heroic courage.”²¹ Noteworthy, ←14 | 15→Time magazine honored three American whistleblowers, including Sherron Watkins, with the title of “Person of the Year 2002.”²² In this case, we should note that Enron had a sixty-four-pages-long code of ethics. However, the mere creation of legal and moral guidelines, without adequate protection for whistleblowers and educating employees in this area, was not enough to prevent the company’s collapse.²³

With regard to the activities of European whistleblowers, it is worth mentioning the case of an employee of the Romanian Prosecutor General’s Office, who shared information on the activities of politicians trying to influence the course of the investigation. Jacob Guja provided one of the newspapers with two letters received by the office. They contained evidence of pressure in a police fraud case. One of letters called on the Prosecutor General to engage personally in the case and to deal with it in accordance with the law.²⁴ Later, the newspaper published an article on the fight against corruption. Moreover, the article contained information on abuses committed by public authorities in Moldavia in this sphere.²⁵ As an example, the newspaper presented the content of two letters sent by Jacob Guja. The whistleblower admitted that he was the one who had given the letters to the newspaper, because he wanted to follow the president’s anti-corruption policy²⁶ and protect the good reputation of the office.²⁷ As a result, he had to face dismissal. The reason for this decision was that the whistleblower had not previously consulted other prosecutors and had disclosed classified documents.²⁸

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Appeals against the dismissal before the national courts have failed Jacob Guja. The courts decided that Guja’s action was an abuse of his post and could not be regarded as a legitimate exercise of his freedom of speech.²⁹ The whistleblower brought an action before the European Court of Human Rights,³⁰ which ruled that his release violated the freedom of expression, in particular the freedom of information and communication guaranteed by the European Convention on Human Rights. The Court indicated that Jacob Guja acted in good faith and had no other effective means of drawing attention to the abuses. Moreover, the Court noted that the public interest in the discussed case outweighed the office’s reputation loss caused by the disclosure of information. As a result of the ruling, the Moldavian State was obliged to pay the applicant €10,000 to compensate for material and non-material damage and more than €8,000 to reimburse costs and expenses. The whistleblower was subsequently reinstated, but after ten days the company fired him again. After using all possible national legal paths, once again, the case went to the European Court of Justice (ECJ). In his complaint, the man indicated that his reinstatement was an illusion and that the actions of the office continued previous sanctions imposed on him for his signaling activity. Some indicators of such situation appeared in the fact that his bosses assigned him no tasks and he did not even have access to the office. The ECJ held that – despite the alleged implementation of the previous ruling – the company never actually intended to reinstate Guja. Another dismissal was a further retaliatory measure for the whistleblowing activity undertaken in 2003. Thus, the Court found that Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms had again been infringed.³¹ This time, the Court obliged Moldavia to pay the applicant €10,000 for the damage suffered and €1,500 as reimbursement of costs and expenses.

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In the literature, we can also find examples on the activity of Polish whistleblowers.³² The publication Wiem i powiem. Ochrona sygnalistów i dziennikarskich źródeł informacji (I Know and Will Tell: The Protection of Whistleblowers and Journalistic Sources of Information) published by the Helsinki Foundation for Human Rights describes one of such examples.³³ The publication concerns a gynecologist who disclosed information on the fixing of a competition for the position of the gynecological ward head at one of the hospitals. After winning the competition, this person was to open a gynecological-oncological ward in the hospital, even though the facility was not adapted for this purpose. The whistleblower shared his information with the hospital authorities, the proper Medical Chamber, and during the session of the County Council. Despite the above, the person concerned won the competition.³⁴ However, the person was dismissed after a series of neglects that led to negative consequences for the health of patients. The whistleblower lost his job and was sued for defamation. Eventually, the court disputes ended favorably for him and, among other things, he was reinstated.

However, as evidenced by the results of the research³⁵ conducted in this field, it is difficult to consider this end of the case as representative of all the whistleblower cases in Poland. Further part of this study elaborates on that matter.

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1 M. Kutera, “Whisteblowing jako narzędzie wykrywania oszustw gospodarczych,” Studia i Prace Kolegium Zarządzania i Finansów 152/2016, Szkoła Główna Handlowa, Warszawa, p. 126.

2 Ł. Kobroń, “Whistleblower – strażnik wartości czy donosiciel?,” Palestra 11–12/2013, Naczelna Rada Adwokacka, Warszawa, p. 296.

3 M. Kleinhempel, “Whistleblowing Not an Easy Thing to Do,” Effective Executive 7/2011, p. 44, https://www.iupindia.in/1107/Effective%20Executive/Effective_Executive.asp, access: 10.09.2019.

4 R. Swedberg, “Civil Courage: The Case of Knut Wicksell,” Theory and Society 28.4/1999, Springer Netherlands, pp. 501–528; qtd. after A. Kobylińska, M. Folta, Sygnaliści – ludzie, którzy nie potrafią milczeć. Doświadczenia osób ujawniających nieprawidłowości w instytucjach i firmach w Polsce, Fundacja Instytut Spraw Publicznych, Warszawa 2015, p. 7.

5 J. P. Near, M. P. Miceli, “Organizational Dissidence: The Case of Whistle-blowing,” Journal of Business Ethics 4/1985, Springer, Berlin, p. 4.

6 N. E. Bowie, R. F. Duska, Business Ethics, Prentice Hall, Englewood Cliffs New Jersey, 1990, p. 73.

7 OECD, G20 Anti-Corruption Action Plan: Protection of Whistleblowers: Study on Whistleblower Protection Frameworks, Compendium of Best Practices and Guiding Principles for Legislation, 2011, p. 7, https://www.oecd.org/g20/topics/anti-corruption/48972967.pdf, access: 16.07.2019.

8 M. Worth, Whistleblowing in Europe. Legal Protections for Whistlebowers in the EU, Transparency International, 2013, p. 6, fn. 3.

9 R. Patterson, Compendium of Banking Terms in English and Polish, trans. Ewa Kieres, Warszawa 2015, p. 1168, https://phavi.umcs.pl/at/attachments/2015/1211/084950-accounting-pol-eng.pdf, access: 10.08.2019.

10 United Nations Office on Drugs and Crime, The United Nations Convention against Corruption, adopted by the UN General Assembly on October 23, 2003.

11 Different persons may refer to consultants, interns, volunteers, suppliers, and previous employers.

12 Worth, “Whistleblowing” p. 6.

13 Association of Certified Fraud Examiners, Report to the Nations: 2018 Global Study on Occupational Fraud and Abuse, https://www.acfe.com/report-to-the-nations/2018, access: 12.04.2019.

14 Kutera, “Whisteblowing,” p. 142.

15 R. Szymczykiewicz, Miejsce tzw. sygnalistów w polskim systemie prawnym, Instytut Wymiaru Sprawiedliwości, Warszawa 2018, p. 6.

16 Kobylińska, Folta, Sygnaliści, p. 17.

17 See also P. Bondarenko, Enron scandal, https://www.britannica.com/event/Enron-scandal, 2016, access: 14.05.2019.

18 A. Burczyc, “Ustawa Sarbanesa-Oxleya i jej następstwa dla działalności audytorów oraz zarządów spółek,” Prace Naukowe Uniwersytetu Ekonomicznego we Wrocławiu 268/2012, Wydawnictwo Uniwersytetu Ekonomicznego we Wrocławiu, Wrocław, p. 44.

19 “America’s Most Innovative Company” was Fortune’s prize awarded to Enron between 1996 and 2001. Enron was also on the list of “100 Best Companies to Work For” in the USA, published by Fortune in 2000. Harvard Business Review assessed it as an innovative company.

20 Kobroń, “Whistleblower,” p. 299.

21 L. Yuhao, “The Case Analysis of the Scandal of Enron,” International Journal of Business and Management 5.10/2010, Canadian Center of Science and Education, pp. 37–40; Kobroń, “Whistleblower,” p. 299.

22 The two other whistleblowers were FBI agent Coleen Rowley and WorldCom accountant Cynthia Cooper.

23 M. Konkel, Dziurawa ustawa nie obroni sygnalisty, 2018, https://www.pb.pl/dziurawa-ustawa-nie-obroni-sygnalisty-907980, access: 14.05.2019.

24 A. Ploszka, “Ochrona demaskatorów (whistleblowers) w orzecznictwie Europejskiego Trybunału Praw Człowieka,” Europejski Przegląd Sądowy 4/2014, Wolters Kluwer Polska, Warszawa, p. 14.

25 M. A. Nowicki, Europejski Trybunał Praw Człowieka. Wybór orzeczeń 2011, Wolters Kluwer Polska, Warszawa 2012, p. 391.

26 In 2003, in a widely reported speech, the President of Moldavia emphasized the need to fight corruption and called upon law enforcement agencies not to give in to pressure from bureaucrats.

27 Ploszka, “Ochrona,” p. 15.

28 Nowicki, Europejski, p. 391.

29 Ploszka, “Ochrona” p. 15.

30 Convention for the Protection of Human Rights and Fundamental Freedoms drew up by the Council of Europe and signed on November 4, 1950; Dziennik Ustaw 61.284/1993.

31 Convention for the Protection.

32 Kobylińska, Folta, Sygnaliści; R. Hryniewicz, K. Krak, Sygnaliści w organizacji. Jak skutecznie wdrożyć system sygnalizowania nieprawidłowości?, Must Read Media, Warszawa 2019; D. Głowacka, A. Ploszka, M. Sczaniecki, Wiem i powiem. Ochrona sygnalistów i dziennikarskich źródeł informacji, Helsińska Fundacja Praw Człowieka, Warszawa 2016; Ł. Kobroń, “Czy Polskę czeka era ‘etycznych donosów?’ Społeczno-prawne aspekty działania whistleblowera,” Zeszyty Naukowe Towarzystwa Doktorantów UJ. Nauki Społeczne, 10/2015, Towarzystwo Doktorantów UJ, Kraków, pp. 81–92.

33 Głowacka, Ploszka, Sczaniecki, Wiem, p. 9.

34 Głowacka, Ploszka, Sczaniecki, Wiem, p. 9

35 A. Wojciechowska-Nowak, Ochrona sygnalistów w doświadczeniu sędziów sądów pracy. Raport z badań, Warszawa 2011.