In Search of a Model for the Legal Protection of a Whistleblower in the Workplace in Poland. A legal and comparative study. Lukasz Bolesta
to bodies responsible for detecting and examining conflicts of interest and discrepancies;
– to a parliamentary committee;
– to the mass media;
– to professional bodies, trade unions, sector organizations; or
– non-governmental organizations.
However, the literature indicates that – despite the lack of indication of the order of using the abovementioned channels – the initial exhaustion of internal ways of disclosure seems to be an element that demonstrates the good faith of whistleblowers.211 On the other hand, disclosing information about wrongdoings directly to the media – instead of the bodies proper for their resolution – may indicate the lack of whistleblowers’ good faith.212 The Law No. 571/2004 lists a number of principles of whistleblower protection in public interest. Among other things, the list includes the principle of liability, according to which the violation of law disclosed by whistleblowers must be supported by information or proofs concerning the committed act. On the other hand, the principle prohibiting the abuse of sanctions towards the person disclosing the violation of law constitutes that such a person cannot be submitted to unfair sanctions or be more severely penalized for other disciplinary misconducts. Whereas, the principle of good leadership constitutes that employees are encouraged to disclose in public interest in order to improve the administration potential and to increase the prestige of the public authorities, public institutions, and other entities specified in the Law No. 571/2004. The principle of good faith is also rather significant for whistleblowers, in accordance with which a person, who is an employee of public authorities, institutions, or another entity specified in the Law, and who discloses an action which constitutes a violation of rights, is guaranteed protection if they believe that such an action indeed occurred and that it was unlawful. The disclosure made in public interests uses the presumption of good faith unless it is disproved. Moreover, upon the request of the whistleblower, against whom began disciplinary proceedings as a result of the disclosure of information, the disciplinary committee or any similar ←49 | 50→body within the organizational structure of the public authorities has the obligation to invite the press and a representative of a trade union or professional body. The disciplinary committee has the obligation to provide the whistleblower with protection by means of concealing their identity if any indicated person is their supervisor or has the power of control over the whistleblower. Moreover, if the whistleblower acted in good faith, the court may decide on the invalidity of the disciplinary or administrative sanctions applied towards them in the scope of retaliation actions undertaken due to his activity.
Slovenia has no act devoted exclusively to the protection of whistleblowers. Moreover, the provisions of the Slovenian labor law do not provide specific protection for people who disclose the perceived wrongdoings.213 However, the protection of whistleblowers is inscribed in the anti-corruption activities of the state. The main act concerning the discussed issue is the Integrity and Prevention of Corruption Act of 2010.214 This Act covers a broad scope of good manners recognized in the international arena in the field of whistleblower protection. Its provisions regulate such issues as the disclosure of wrongdoings, the guarantee of identity protection for whistleblowers, definitions of illegal and unethical actions or sanctions in a case of the violation of the whistleblower protection. This regulation does not provide the obligation to make disclosures of perceived wrongdoings nor the financial rewards for such actions.215
Article 1 of the Integrity and Prevention of Corruption Act establishes the means and methods for the purposes of strengthening integrity and ←50 | 51→transparency in order to prevent corruption and avoid and eliminate conflicts of interest. On the other hand, in accordance with Article 4 of the Act, “corruption” means any violation of the proper conduct of responsible officials in public or private sector – which also means the conduct of people who initiate such violations – or of people benefiting from the violation in order to gain undue, promised, offered, or transferred directly or indirectly benefits, or in order to gain undue, demanded, accepted, or expected benefits for own gain or for the gain of any other person.
Chapter III of the Act consists of regulations concerning the protection of people working in public and private sectors, who in good faith and in a reasonable way disclose their suspicions about illegal or unethical conducts, is crucial for the subject matter of the present study.216 This chapter is composed of three articles, which concern the disclosure of corruption and the protection of disclosing people (Article 23), the disclosure of unethical and unlawful action (Article 24), or the means of protecting the disclosing person (Article 25).
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