Mechanisms of Preventing Retaliation against Whistleblowers

Integrity and Prevention of Corruption Act (IPCA) Republic of Slovenia, 2010 IPCA doesn’t use the word “whistleblowers”, but instead uses the term “reporting persons” in line with UNCAC. Any person may report instances of corruption in a State body, local community, by a holder of public authority or other legal persons governed by public or private law, for which he believes that it contains elements of corruption. Measures of protection: measures that protect the identity of the reporting person measures that protect the reporting person against retaliation.

Protection of identity: IPCA protects the identity of all reporting persons, regardless if they request it or not; during and after the proceedings, the identity of the reporting person is not considered public information and doesn’t fall under the Access to Public Information Act (this measure also applies in cases that were forwarded to other competent state bodies); it is forbidden to reveal the identity of a reporting person that submitted the report in good faith and had reasonable grounds to believe the submitted information was true (a fine in the range of 400 to 4000 EUR); special protection regarding the reporting person‘s identity – „concealed reporting person“.

Protection against retaliation: if the reporting persons have been subjected to retaliatory measures as a consequence of their report, they have the right to claim compensation from their employer for the unlawfully caused damage by filing a lawsuit; the burden of proof is on the employer; the CPC can offer assistance in establishing a causal link between the initial report and retaliatory measures.

Protection against retaliation: if the reporting persons are public servants, and if they continue to be the focus of retaliation, making it impossible for them to continue work in their current work post, they can request that their employer transfers them to another equivalent post. The public servant's employer must ensure that the demand for transfer is met within 90 days and must inform the CPC about it; if in connection with the report of corruption, the conditions for the protection of the reporting person or his family members are fulfilled under the law on witness protection (Witness protection Act), the CPC may propose that the State Prosecutor General take urgent safeguarding measures.

Case Study

The whistleblower was an accountant in a public company, owned by the local government (municipality), and she had been working there for 15 years. She had reported to the National Review Commission that the director of the public company ordered her several times to prepare the technical specifications of public procurements in such a way that they suited the pre-selected candidates. She also referred to one procurement in particular – the purchase of a dump truck, which was still ongoing. The National Review Commission forwarded her report to the CPC.

The CPC established there was an integrity breach in regards to the conduct of responsible persons in the public company, therefore it: - issued the findings with recommendations; - published the findings on its website; - forwarded the findings to the Police and the National Review Commission.

At this point, the whistleblower informed us that the director suspected that she made the report and that she had been suffering retaliation since the start of the CPC’s investigation: - turning other employees against her; - colding her for “mistakes” that she didn’t make; - removing her from work on public procurement; - threatening with dismissal. Just as the CPC officially started the procedure for protection, the wistleblower informed us she’d been fired. She filed a lawsuit against her employer and asked CPC for help in establishing causal link between her report and retaliation.

The CPC had to establish: - good faith; - belief that the disclosed information is true; - retaliatory measures by the employer; - causal link between the whistleblower’s report and retaliation. The CPC took into consideration: - internal report (supervisory board); - external report (National Review Commission); - veracity of information; - chronological course of events; - labour inspector. The court took the CPC’s report on the established causal link into evidence. The parties settled out of court.

Questions