Whistleblowers – between law and reality
Whistleblowers – between law and reality
Serbian National Parliament adopted Act on the Protection of Whistleblowers (“Official Gazette of RS”, no. 128/2014, hereinafter “APW”) on December 4th, 2014, rightfully recognizing that whistleblowers are essential elements of an ethical social and economic environment and hence deserve additional institutional protection (especially because of their exposure to employers’ retaliation).
Who are whistleblowers
A whistleblower is any person who discloses to the public, their employer or to the competent authority any information on illegal activities, human rights violations, performance of public duties contrary to their purpose, risk to life, public health, security, or any other kind of information that may prevent large scale damages from occurring. This person may gain knowledge or become aware of the aforementioned information by being an employee of the wrongdoer, by using public services, or being engaged in business activities with the wrongdoer.
As per the above definition and provisions of the APW, there are three kinds of whistleblowing:
- Internal – when the employee discloses information to their employer;
- External – when the competent authorities are notified of the wrongdoing; and
- Whistleblowing to the public – usually through media or other public outlets.
The rights and procedures that protect whistleblowers from the potential blowback are determined in accordance with the specifics of each type of whistleblowing. For example:
- the employer that employs more than 10 people is obliged to enact a bylaw which regulates the procedure of whistleblowing;
- the employer is obliged to notify in writing every employee about their right to protection under APW;
- employer or competent authority to which the whistleblower discloses said information must act within 15 days from the day of receipt of the disclosure;
- the whistleblower may disclose said information to the public without prior notification of the employer or competent authorities only if there is an immediate threat to life, public health, security, environment, large scale damages or destruction of evidence.
Additionally, a whistleblower may choose to remain anonymous.
What kind of protection are they entitled to
The APW protects whistleblowers by providing them with certain rights under the following conditions:
- that they disclose relevant damning information within one year from the date he/she came into possession of that information, but not later than ten years from the date on which wrongdoing has been performed;
- based on the available information, any other person of average knowledge and experience similar to the whistleblower would put faith in the veracity of information subject to the whistleblowing;
- that the whistleblowing was conducted in good faith (that the right to whistleblowing is not being abused).
Whistleblowers are protected from being placed in an unfavorable position and may be afforded a reimbursement of damages in accordance with Contracts and Torts Act.
APW lists examples of placing a whistleblower in the unfavorable position:
- employment/recruitment procedure;
- acquiring the status of an intern or a volunteer;
- work outside employment;
- education, training, or professional development;
- promotion at work, assessment evaluation, promotion or demotion;
- disciplinary measures and penalties;
- working conditions;
- termination of employment; etc.
In addition to this, the employer or the competent authority may be fined for misdemeanors stipulated by this act.
Unfortunately, even five years after the APW was adopted, whistleblowers are not receiving adequate protection. Because of this very few people dare to speak up and “blow a whistle”, which is defeating the purpose that the Government has set out to achieve.
Although well-intentioned, certain aspects of this regulation are flawed as there are still cases where the provided protection is insufficient. One of the main problems lies within the fact that under current provisions of the APW, it is easy for wrongdoers to claim that the whistleblower is disclosing classified information. Such information cannot become public and the whistleblower can only turn to their employer or the competent authorities and the procedure ends there. We can easily see how this may become a problem if the entity accused of wrongdoing is the very authority that should provide protection to the whistleblowers.
In order to comply with the provisions of APW and ensure that your whistleblowing rights are protected, it is advisable to consult with your attorney of choice.
This text is for informational purposes only and should not be considered legal advice. Should you require any additional information, feel free to contact us.
Miloš Velimirović , Partner
Dragan Martin, Associate
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