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
←15 | 16→
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.
←16
