from the Perspective of a Country Without Specific Legislation

Whistleblowing in the Case Law

The case law of Polish courts which concerns the whistleblowing mainly relates to disputes between employees and employers concerning the dismissal of the employee either with notice or without notice (disciplinary dismissal) by the employer. It should be underlined that the judicial control of valid grounds for the dismissal is possible only in case of an open-ended contract of employment. In case of fi xed-term contracts, the labour court may only control the legality of notice. Moreover, in case of the fi xed-term contracts, the dismissed employee may only demand the payment of damages in case of illegality of the dismissal with notice. In case of open-ended contracts, the employee may also demand the reinstatement in work, if she/he was dismissed with notice (Article 45 § 1 and 2 of the Labour Code). However, even in case of the open-ended contracts, the labour court adjudges only damages if the reinstatement in work is impossible or aimless. As the Polish Ombudsman pointed it, the whistleblower usually has no chances to be reinstated in work, as the labour courts estimate that the confl ict between the employee and the employer makes it impossible or useless. 16 According to the information delivered by the Ombudsman, the most common form of reprisals is the dismissal of the whistleblower with notice justifi ed by the reason that his/her post of work is being liquidated. In such a case, labour courts have a narrow scope of appreciation if the dismissal is justifi ed in reality. According to the Supreme Court, 17 the liquidation of the post of work in the scope of the real organizational changes justifi es the dismissal of the employee. Decisions concerning the utility of maintaining of this post belong to the sphere of employers’ prerogatives and shall not be subject to the control of the labour courts. This statement was confi rmed in the more recent case-law. In the judgment of the Supreme Court of the 5th September 2001 (I PKN 613/00), the liquidation of the post of work as such is not a suffi cient justifi cation for the dismissal. The causal link between the liquidation and the given notice should be examined. However, according to the statement of the Supreme Court, if the causal link is established between the liquidation of the post and the dismissal, the liquidation constitutes the valid ground for the dismissal. The Supreme Court is not entitled to examine business or personal reasons of such liquidation. 18 Therefore, the control of the labor court is restricted to the analysis if the liquidation of the post of work really took place and if it was a truthful and not only an apparent reason for dismissal. Then, the disclosure of irregularities by an employee may also lead to the disciplinary dismissal. According to the relatively recent judgment of the Supreme Court, 19 the aim of the employee to prevent the wages discrimination by the employer is not a fair ground to dismiss the employee without notice. In the circumstances of

16 See the Ombudsman’s letter of the 3rd March 2009, RPO-606960-III/09/RP/AF, p. 4. 17 Judgment of Supreme Court of 23th May 1997, I PKN 176/97. 18 Decision of the Supreme Court of the 2nd February 2012, II PK 252/11. 19 Judgment of the Supreme Court of the 26th May 2011, II PK 304/10.

this case the employee discovered by a chance the unjustifi ed disparities in wages between employees. The plaintiff had a coincidental access into documents which should have not been revealed (he received an e-mail containing confi dential data by mistake). The plaintiff distributed the data among his colleagues in order to explain the inequality in remunerations. As a consequence, he was dismissed without notice for the breach of the duty of confi dence. The Supreme Court stated that the transmission by the employee to other employees of data covered by the so-called clause of confi dentiality of wages in order to prevent the unequal treatment and the wages’ discrimination cannot constitute the valid ground for the disciplinary dismissal of the employee. There is a plentiful case-law concerning the dismissals with notice or without notice for the fault of the employee justifi ed by the critical opinions of the employee about the employer. This case-law gives indications for the limits of the legally acceptable criticism towards employer, the surpassing of which may justify the dismissal of the employee. It may be concluded from this case-law, that the acceptable criticism must be in conformity with the law, should serve the defense of the employees’ interests, be done with bona fi de . It also should be done in a manner which is adequate and proportional to the degree of the infringement of the employees’ interests. 20 The Supreme Court stated that the critical opinions about the employer which are arrogant, malevolent, not based on any proofs should be treated as extending above the legally allowed limits of the criticism. 21 Similarly, the Supreme Court refused to give protection against unfair dismissal to an employee responsible for the internal control who was breaching the internal order of work, did not subordinate himself to the decisions of the superiors and was provoking unjustifi ed confl icts while carrying out his controlling duties (case I PKN 435/99).

The Scope of Protection

The general provisions of law protect employees who are whistleblowers not only against dismissal but also against mobbing, infringement of personal goods or any unequal treatment concerning the conditions of work or remuneration. The whistleblowers who were punished with the reprimand by the employer, are entitled to lodge an appeal against this penalty to the labour court (Article 112 § 2 of the Labour Code). Employees who are helping or encouraging whistleblowers or affi rming whistleblower’s allegations may seek protection on the same basis as whistleblowers. There are no special provisions regulating their situation. The burden of proof that the whistleblowing constituted the only reason for the dismissal is with the employee. The reversal of proof is only valid for the

20 S. W. Ciupa, Niedozwolona krytyka pracodawcy ze strony pracownika jako przyczyna wypowiedzenia umowy o pracę, ( Unacceptable criticism of the employer by the employee as a reason for the dismissal with notice ), Monitor Prawniczy 20/ 2002 . 21 Judgment of the Supreme Court of the 17th December 1997, I PKN 433/97.

discrimination cases and the whistleblowing is not a criterion which may be included in the catalogue of the forbidden criteria. Article 18 3a § 1 of the Labour Code states that employees should be treated equally with regard to concluding and terminating employment contract, the terms of employment, promotion and access to vocational training aimed at upgrading their professional qualifi cations in particular independently of sex, age, disability, race, religion, nationality, political opinion, membership in a trade union, ethnic origin, belief, sexual orientation as well as employment for a fi xed term or for an indefi nite period of time or a part-time or full-time employment. Even though this catalogue is not a closed one, according to the judgment of the Supreme Court (Case II PK 82/12), discrimination shall be defi ned as a worse treatment of the employee which is not justifi ed by the objective grounds for the reason of characteristics or properties which concern him/her personally and are relevant from the social point of view or for the reason of employment for determined or undetermined period or the fulltime or part-time employment. The disclosure of irregularities cannot be qualifi ed as a personal feature of an employee in the meaning of this judgment. Also in cases concerning the mobbing, 22 it is the employee who is obliged to prove that all the legal elements of the mobbing 23 were fulfi lled. The realm of irregularities which may be disclosed is not limited. The whistleblowing may concern such irregularities as infringements of labour law provisions, dangers to health and safety or to the environment, malpractices related to the conduct of the business, accountancy irregularities or any criminal offences. The protection, especially in cases of criminal offences, is not dependent on the fact that reporting concerns only bygone incidents. Unfortunately, in Poland, there are no provisions in force which would enumerate the ‘qualifi ed disclosures’ giving the right to the legal protection. The drawback of the general protection of the whistleblowers on the basis of the Labour Code in Poland is that the Labour Code provisions do not protect the workers employed on the basis of civil law contracts. It is thus contrary to the newest recommendation of the Council of Europe 24 according to which the legal protection of whistleblowing should cover all individuals working in either the public or private sectors, irrespective of the nature of their working relationship and whether they are paid or not. It should be mentioned that the number of workers employed on the basis of civil law contracts or on the basis of self-employment increased to an important scale in last years. This group is particularly vulnerable on the labour market and in practice deprived of means to seek legal protection in case of termination of a civil law contract by the opposite party. The available remedies consist only in claiming the

22 See the judgment of the Supreme Court of the 5th December 2006, case II PK 112/06 or the judgment of the Supreme Court of the 5th October 2007, case II PK 31/07. 23 See Art. 94 3 § 2 of the Polish Labour Code. 24 Recommendation CM/Rec(2014)7 adopted by the Committee of Ministers of the Council of Europe on 30 April 2014 and explanatory memorandum, Protection of whistleblowers, point 3.

compensation for the damages resulted from the breach of the contract according to the civil law provisions and the contract’s clauses. 25

Problem of Anonymity

The anonymous whistleblowing is not a rule in Poland. The protection of the identity of the whistleblower is provided for in several situations. 26 In the realm of the controlling activities of the State Inspection of Labour (infringement of employment provisions or of environmental norms by the employer, etc.), the inspector of labour may deliver a decision concerning the non-disclosure of the identity of the whistleblower if the disclosure could be harmful or risky in any way for the employee or a self-employed person (Article 23 para. 2 of the Law on the State Inspection of Labour). It is thus a discretionary decision and the refusal to impose anonymity shall not be contested by the signaler. Moreover, the employer in such a situation may appeal from this decision to the Regional Inspector of Labour. If the disclosed irregularities constitute criminal offences, the whistleblower may demand the status of the so-called incognito witness (Article 184 of the Code of the Criminal Procedure). The status of the incognito witness may be given if there is a justifi ed risk of danger for life, health or property in the important amount for the witness or one of his/her closest relatives. In the context of anonymity, a particular confl ict between the disclosure of identity of a whistleblower and obligations of an employer concerning the protection of personal data is observed. Inspector General for the Personal Data Protection drew attention of the Labour Minister in the offi cial letter of 2010 on the possible deterrent to whistleblowing consisting in obligation of the employer to inform the individual whose personal data are collected from a third party and not from him/ her directly about the categories of the data and its source. This obligation is a result of the implementation of the Directive 95/46/EC of the EP and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Articles 11 and 12). The Article 29 Data Protection Working Party set up by the above-mentioned directive partially clarifi ed this problem enumerating the content of the information to be transmitted to the incriminated person 27 and allowing at the same time for the delay in its notifi cation as long as there is a risk that such a notifi cation would jeopardize the investigations. According to the Polish Inspector General for the Personal Data Protection, it is still diffi cult to defi ne the precise time of notifi cation in such cases.

25 See also A. Wojciechowska-Nowak, Providing an Alternative to Silence. Towards Greater Protection and Support for Whistleblowers in the EU. Providing an Alternative to Silence, Country Report Poland, Transparency International 2013 , p. 10. 26 See also A. Wojciechowska-Nowak, Providing an Alternative to Silence. Towards Greater Protection and Support for Whistleblowers in the EU, ibid., p. 11. 27 See Opinion 1/2006 (00195/06/EN) adopted on the 1st February 2006, p. 13.

As it concerns the anonymity, the Working Party stated that under no circumstances the incriminated person could obtain information about the identity of the whistleblower except where the whistleblower maliciously makes a false statement. 28

Public Disclosure of Irregularities

Public disclosure of information may incur for the whistleblower the risk of the penal responsibility. The whistleblower who diffuses any information on irregularities at the workplace may be held responsible, according to Article 212 § 1 of the Criminal Code, for the defamation. The offence of defamation consists of accusing someone of a conduct or properties that may degrade him/her in public opinion or expose him/her to the loss of confi dence necessary for a given position, occupation or type of activity. The proceedings are pursued on the request of the defamed person. In case of the condemnation for the offence of the defamation, the court may adjudge damages for the victim or for any social aim indicated by the victim. Penalties include a fi ne or a limitation of liberty (Article 212.1 of the Criminal Code). The penalty is more severe when the offense of defamation takes place through the media (Article 212.2 of the Criminal Code) and it includes a fi ne, a limitation of liberty but also an imprisonment for up to 1 year. It is also more diffi cult for the whistleblower to liberate her/him from the charge of defamation if the accusation is done through the media. In case of the non-public defamation, it is suffi cient to prove that the accusation was true. In case of defamation through the media, there are two conditions to be met: fi rstly that the critical opinion was true and secondly that it served the socially justifi ed interest (Article 213 § 2 point 2 of the Criminal Code). According to the Supreme Court case-law, 29 the fulfi llment of the latter condition requires that the person who commits the act of defamation pursues only the socially justifi ed interest and is not motivated otherwise. According to the doctrine, 30 in order to estimate that the defamator acted in the pursuit of the socially justifi ed aim, the following conditions have to be met: a social interest has to be put at risk by the addressee of the accusation, the accusator acts in order to defend this interest from the potential damage, the content of the accusation is such that its disclosure may in fact prevent the infringement of the interest put at risk. It should be underlined that even if the freedom to express opinions, to acquire and to disseminate information is a constitutionally guaranteed right, this right does not allow for the dissemination of the untruthful or defamating information. As it concerns the alleged offence of the defamation, only truthful allegations (in pursuit of the socially justifi ed interest, in case of the defamation through the media)

28 See Opinion 1/2006, p. 14. 29 See e.g. the Supreme Court Resolution of the 17th April 2012, SNO 3/12, the judgment of the Supreme Court of the 30th September 2003, III KK 176/02. 30 See W. Kulesza, Zniesławienie i zniewaga ( Defamation and insult ), Warsaw 1984, pp. 71–72.

exonerate from the criminal responsibility. In consequence, the Supreme Court (the judgment of the 4th September 2003, IV KKN 502/00) indicated that the condition of the socially justifi ed interest is not fulfi lled if the accusation is not confi rmed (uncertain) even though later it would appear to be true. Moreover, the Supreme Court has judged that the defamation done with conscience that the information delivered and the alleged properties of another person are not truthful, never serves the socially justifi ed aim. 31 Moreover, the information about the criminal offence to the prosecuting organs with the conscience that this offence was not committed constitutes the criminal offence itself which is penalized with a fi ne, the limitation of freedom or the imprisonment up to 2 years (Article 238 of the Criminal Code). As it concerns the labour courts’ case-law, it is more favourable for the erroneous whistleblowing. According to the Supreme Court judgment of the 18th July 2012 (I PK 44/12), the critical statements about the employer and disclosure of the information to the owner of the establishment about the possible irregularities are not a fl agrant infringement of the employee duties even if the charges will appear later to be unjustifi ed. However, the allegations should be done in good faith with the belief that the irregularities exist at the workplace.

Concluding Remarks

The legal situation of whistleblowers in Poland is not regulated in one, separate legal act. The provisions concerning the protection of persons who disclose irregularities at the workplace are dispersed in different regulations. Such a situation is not in line with the above-mentioned Recommendations of the Council of Europe. According to point 8 of the Recommendations, the normative framework on whistleblowing should refl ect a comprehensive and coherent approach to facilitating public interest reporting and disclosures. In the light if an OECD review, Poland’s whistleblower regulations are largely ineffective and make it easy for employers to evade application of law. 32 The case law of the Supreme Court protects the employees who disclosed irregularities against the reprisals from the employer consisting in unfair dismissal. However, this protection is mainly offered to employees employed on the basis of the open-ended contract. Moreover, in cases concerning mobbing or unequal treatment at the workplace, burden of proof lies with the employee. The adoption of the legal act concerning the whistleblowing is necessary in order to assure the bigger

31 See the Supreme Court Decision of the 22nd June 2004, V KK 70/04. 32 See OECD Working Group on Bribery, Phase 3, Report on Implementing the OECD AntiBribery Convention in Poland, June 2013, p. 42, www.oecd.org/daf/anti-bribery/Polandphase3 reportEN.pdf.Accessed 14.01.2015. For partially critical opinion on the Polish legislation see also Transparency International, Whistleblowing in Europe. Legal protections for whistleblowers in the EU, 2013, pp. 69–70, www.transparency-france.org/e_upload/pdf/eu_whistleblower_report_ fi nal_web.pdf . Accessed 14.01.2015.

legal certainty concerning the consequences of disclosure of irregularities in the public interest. This act should regulate especially the personal scope of protection including not only employees but also workers employed on the basis of the civil law contracts and the self-employed persons as well as trainees or candidates to work. It is recommended that it establishes a catalogue of so-called ‘qualifi ed disclosures’ such as for ex. criminal offences, dangers to health and safety or environment, corruption, breaches of law. In case of qualifi ed disclosures the burden of proof that the disclosure was not the sole reason for dismissal or other acts of discrimination or harassment should lie with the employer. The new legal act should also provide for a general priority of the internal reporting and oblige the employers to set up procedures for internal reporting in cooperation with employees’ representatives in the company, especially through collective labour agreements. Moreover, the penalties should be imposed on persons who are responsible of reprisals against the whistleblowers. 33 According to the above-mentioned public opinion poll, the fear for the disclosure of the identity is the main deterrent for the potential whistleblowers. To eliminate the risk of retaliations the employer or the prescribed bodies to which the malpractices may be reported, such as Public Prosecutor’s Offi ce or the State Inspection of Work should guarantee confi dentiality of the identity of the whistleblower for the time-being of respectively internal or external investigation procedure. The employers would be obliged to set in this respect special channels of reporting including persons selected in the organization (preferably in consultation with trade unions or other employee representatives) designated to receive reports in confi dence and not to disclose it to third parties. 34 However, if the disclosed information will be confi rmed untruthful and not based on reasonable grounds, the maliciously incriminated person should have the right to get information about the identity of the whistleblower in order to launch criminal proceedings for defamation or claim damages according to the civil law provisions. Whistleblowing shall be protected and promoted insofar as it serves public interest and is done with sincere and honest intentions.

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