Chapter 12
Portugal: The Protection of the Whistleblower from the Perspective of a Country Without Specific Legislation Júlio Gomes
Abstract Law may to some extent protect the whistleblower without a specific treatment of whistleblowing – even if that sounds as a paradox – and that is frequently the case in countries where the disciplinary dismissal requires a faulty breach of the employment contract by the employee, particularly if the employee is entitled to reinstatement if the dismissal is unlawful.
The issue of the legal protection of the whistleblower, at least in private employment relationships, can hardly be described as a contentious or important topic in Portugal. There is no doctrinal controversy and just a handful of court cases.1 Nevertheless a few recent court rulings show that the problem exists and that whistleblowing remains a rather hazardous behaviour. In one recent case2 an employee of a butcher’s shop made an anonymous complaint to the sanitary authorities concerning the lack of hygiene and the disrespect of health safety rules. As a result the authorities made a surprise inspection but were unable to detect any serious anomaly. The employer’s lawyers had access to the complaint and were able to identify the whistleblower that was later subject to a disciplinary procedure and dismissed. The court ruled that the dismissal was justified. On the one hand, the court said, an employee has a duty of confidentiality that encompasses violations of the law by her/his employer, as long as they are not criminal offences. On the other hand the fact that the employee tried to conceal his identity was evaluated as further evidence of his awareness that he is acting in 1
This scarcity of judicial cases is by no means restricted to Portugal. The same seems to be true, for instance, in Italy. See MARIA TERESA CARINCI, Whistleblowing in Italy: rights and protections for the employers, WPCSDLE “Massimo D’Antona”. INT, n.° 106/2014 (http://csdle.lex. unict.it), p. 2. This writer explains the rarity of judicial cases concerning whistleblowing stating that the Italian citizen in average is not that much concerned with the common good. 2 Acórdão Tribunal da Relação de Coimbra, 27/09/2012, 471/11.0T4 AGD.C1 (LUIS MIGUEL FERREIRA DE AZEVEDEO MENDES), available (in Portuguese) in www.dgsi.pt. J. Gomes (*) Alameda Jardins da Arrábida 436, 3C, 4400-478 Vila Nova de Gaia, Portugal e-mail: jgomes@porto.ucp.pt © Springer International Publishing Switzerland 2016 G. Thüsing, G. Forst (eds.), Whistleblowing - A Comparative Study, Ius Comparatum - Global Studies in Comparative Law 16, DOI 10.1007/978-3-319-25577-4_12
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