In Search of a Model for the Legal Protection of a Whistleblower in the Workplace in Poland. A legal and comparative study. Lukasz Bolesta
European Parliament and of the Council of 23 October 2019 on the Protection of Persons Who Report Breaches of Union Law
1.5 Summary
Chapter II Whistleblower Protection in Polish Legislature
2.1 Preliminary Remarks
2.2 Whistleblower Protection in Polish Labor Law
2.2.1 The Law of June 26, 1974, in the Labor Code
2.2.2 The Law of May 23, 1991, on Trade Unions
2.2.3 The Law of June 24, 1983, on Social Labor Inspection
2.2.4 The Law of April 13, 2007, on the National Labor Inspectorate
2.3 Whistleblower Protection in Other Polish Regulations
2.3.1 The Law of August 5, 2015, on Macroprudential Supervision of the Financial System and Crisis Management in the Financial System
2.3.2 The Law of July 29, 2005, on Capital Market Supervision; the Law of May 27, 2004, on Investment Funds and Alternative Investment Fund Management; and the Law of June 9, 2011, on Geological and Mining Law
2.3.3 The Law of April 16, 1993, on Combating Unfair Competition
2.3.4 The Law of March 1, 2018, on Counteracting Money Laundering and Terrorism Financing
2.3.5 The Law of June 6, 1997, on the Code of Criminal Procedure and the Law of June 6, 1997, on the Penal Code
2.4 Summary
Chapter III Proposal of Whistleblower’s Legal Protection Model in the Workplace in Poland
3.1 Preliminary Remarks
3.2 Draft Laws
3.2.1 Draft Law on Transparency in Public Life
3.2.2 Draft Law on the Liability of Collective Entities for Criminal Offences
3.2.3 Citizens’ Draft Law on Whistleblowers’ Protection
3.3 Doctrinal Proposal
3.4 Summary
Conclusion
Bibliography
Index of names
Lex et Res Publica Polish Legal and Political Studies
Edited by Anna Jaroń
Volume 13
| Zur Qualitätssicherung und Peer Review der vorliegenden Publikation | Notes on the quality assurance and peer review of this publication |
| Die Qualität der in dieser Reihe erscheinenden Arbeiten wird vor der Publikation durch die Herausgeberin der Reihe geprüft. | Prior to publication, the quality of the work published in this series is reviewed by the editor of the series |
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