Whistle Blowing Theory And Whistleblowers Protection
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Published: Fri, 05 May 2017
The aim of this paper is to present the theory of whistleblowers protection, analyze the mechanisms for protection that surrounds it and draw out recommended whistle-blowing protection for Republic of Macedonia. It will start with presenting background theory for whistleblowers protection and define the main concepts of this theory such as who are the whistleblowers, what it means and when does it occur, and what are the most commonly used mechanisms for protection of whistleblowers usually included in policies.
The paper will furthermore, analyze the basic mechanisms of protection such as anonymity, immunity from legal action, and protection against reprisal which are often referred to as basic whistle-blowing protection, and further mechanisms such as relocation or transfer, reinstatement and back pay. These mechanisms will then be compared to the legislation in Macedonia. The final part of this paper will conclude with recommendations drawn out from these analyses for a whistleblowers policy protection that might be adopted by the Government in Macedonia.
Whistle-blowing is a term that has been used a lot in the media to present different cases of wrongdoing and stress the importance of these cases for the public welfare. In this part of the paper we will look at the concept behind whistle-blowing and what this means through several different definitions that have been used in this theory or definitions that support the understanding of the author of this paper. Furthermore, we will define the term whistle-blower and whistleblowers protection and several cases of whistleblowers will be presented in order to present the importance of this protection.
The term “whistle-blowing” comes from different origins. The general understanding that underlines the origin of this term usually derives from the action of whistling as an act of signaling. In these terms, Miceli and Near make a parallel of the act of blowing the whistle in a corporation or government, and the whistling of a football referee. By comparing whistle-blowing with “an official on a playing field, such as a football referee, who can blow the whistle to stop action”, they refer to the whistleblower as someone who whistles to stop wrongdoings (Miceli and Near 1992, 15). Similarly Deiseroth, ties the term “whistleblower” to the “Englishbobbies(policemen), who would blow their whistles when they would notice the commission of a crime” (International Network of Engineers and Scientists for Global Responsibility 2009). All of these imply that whistle-blowing as an act is related to signaling wrongdoings. Before going into explanation of who are the whistleblowers and what is the impact of reporting wrong doings, we will look at the theory that defines the concept of whistleblowers and whistle-blowing as an act.
According to Larmer, whistle-blowing is “the act of complaining, either within the corporation or publicly, about a corporation’s unethical practices” (Larmer 1992, 126). De Maria in his book “Deadly disclosures: whistle-blowing and the ethical meltdown of Australia” defines whistle-blowing as a “public exposure of wrongdoing” (De Maria 1999, 32) and as an “ethical resistance against the usually protected existence of wrongdoing” (De Maria 1999, 34). Whistle-blowing is also defined as “the disclosure by organizations members (former or current) of illegal, immoral, or illegitimate practices under the control of their employers, to persons or organizations that may be able to effect action” (Near and Miceli 1985, 4).
In addition to these definitions Jubb looks at whistle-blowing in a broader range and defines it as “dissent, in response to an ethical dilemma, in the form of a public accusation against an organization” (Jubb 1999, 79) and in the more narrow terms defines it as:
a deliberate non-obligatory act of disclosure, which gets onto public record and is made by a person who has or had privileged access to data or information of an organisation, about non-trivial illegality or other wrongdoing whether actual, suspected or anticipated which implicates and is under the control of that organisation, to an external entity having potential to rectify the wrongdoing (Jubb 1999, 79).
As it can be understood from the provided definitions of whistle-blowing, we can conclude that the concept of whistle-blowing is mainly defined as a concept that involves reporting of ethical wrongdoings which affect the public in the society.
Now that we have underlined the origins and the act of whistle-blowing, we turn to identifying who is the whistle-blower and why there is a need for a whistleblowers protection.
De Maria defines whistleblowers as:
a concerned citizen, totally or predominantly motivated by notions of public interest, who initiates of his or her own free will, an open disclosure about significant wrongdoing directly perceived in a particular occupational role, to a person or agency capable of investigating the complaint and facilitating the correction of wrong doing (De Maria 1995, 447).
At the same time, Miceli and Near define the whistleblowers as present or past member of an “organization against which the complaint is lodged” (Miceli and Near 1992, 16).
The definitions given above imply and confirm the idea given in Jubb’s more narrow definition of whistle-blowing about possessing inside knowledge about an organization regarding different wrongdoings of the organization or skeletons in their closets. They also stress the importance of whistleblowers in the act of revealing wrong doings in the public sector or the organizations. Additionally, the provided definitions of wrong doings also stress the importance that these acts often refer to information in possession of the whistleblowers gained in the period of employment with the public sector or given organization, which deals with illegal or un-ethical acts.
Unfortunately when information is leaked very often the question within the organizations according to Frome is not “Is it right or wrong? but “Who leaked it?” (Frome 1978, 53). In many cases such as these, when this information is exposed to the public, the whistleblowers are fired, repressed or in some extreme cases even assassinated. Such is the case of Marlene Garcia Esperat who “was killed for her exposé on graft and corrupt practices” (Espejo 2006) in the Philippines Department of Agriculture in 2005. Similar is the case of Satyendra Dubey who brought up the corruption in the highway construction in India and was assassinated in 2003 “year after he complained to Mr Vajpayee and the road network authorities” (BBC News 2003), and the case of Manjunath Shanmugam, who brought up to attention the corruption in the gas industry in India and was “murdered for exposing an adulteration racket in Lakhimpur” in 2005 (News, Daily News Updates 2009).
Even thought the cases presented above represent extreme situations, they stress the importance of having policies that will offer whistleblowers protection. The protection in these terms is provided through the several mechanisms brought up at the beginning of the paper, namely the anonymity, immunity from legal actions, protection against reprisal as well as relocation, reinstatement and back pay.
Whistleblowers are in some cases reluctant to blow the whistle. This can be a result of many factors, some of which include the fear of their safety, the seriousness of the information that they are in possession of, and some factors may include the fear of unfair retaliation. In these cases whistleblowers may choose to stay anonymous. However even thought some of these factors can be into play anonymity not always can be guaranteed, especially in cases as defined by Elliston when the anonymity “impedes the pursuit of truth” (Eliston 1983, 174). One way of establishing anonymity is by introduction hot lines in the organization, but has to be taken into account that this may come as a conflict in smaller organizations.
Immunity from legal action
This shield refers to the immunity from legal actions for the whistleblowers. In the most simplified meaning this reflects to situations when the whistleblower may be given immunity from criminal prosecution in exchange for their testimony. The Justice Department of Australia in a discussion paper on Public interest disclosures states that person that discloses information about wrong doing “will not be liable for any action, claim or any other demand of whatsoever nature including for breach of statute, criminal offence, defamation, breach of confidence, misconduct or other disciplinary offence” (Tasmanian Department of Justice 2000). However, it needs to be noted as well that immunity from legal actions is also not always guaranteed. For example, a person can not be given immunity if the wrongdoings that are reported have been carried by from the person that is reporting them.
Protection against reprisal
Protection against reprisal is seen as critical by Near and Dworkin because “it signals organizational support for the reporting of wrongdoing” (Near and Dworkin 1998, 1560). These authors point out that “an organization that does not treat its employees fairly under other circumstances would seem more likely to retaliate against whistleblowers than would an organization that is seen as fair” (Miceli and Near 1992, 217). Considering the above, whistle-blowing protection policies usually define certain actions that are taken against individuals that are attempting or conspiring to cause harm to the whistleblower.
Relocation or transfer
Relocation, which sometimes is tied to anonymity, is an additional mechanism of the whistleblower protection that provides relocations or transfers to another department upon a request of the person that blows the whistle. In cases when the identity of the whistleblower is keep anonymous this protection is not necessary, whereas in cases of knows identity additional protection is provided by relocating the whistleblower. In other cases, the whistleblower if he has concern about his safety, he can again request for relocation or transfer. It needs to be taken into account that considering this protection will most probably vary on a case to case basis. The South Australian Whistleblower Protection Act 1993 states that if whistleblowers feel that a reprisal might arise from their actions of reporting wrongdoings, they can request for relocation on the basis that “the only practical way to remove or substantially remove the danger” (South Australian Whistleblower Protection Act 1993).
The reinstatement with the whistleblowers protection usually falls under the categories of remedies. Within this category reinstatement should be provided in order for the whistleblowers to continue his career. Kohn states that one of the goals of reinstatement is to “‘restore’ the employee ‘as nearly as possible’ to the position he or she would have been in if the discrimination has not occurred” (Kohn 2001, 331). Furthermore, he states that reinstatement after a person has blown the whistle is sometimes nearly impossible especially when it comes to finding “comparable work in the same industry” (Kohn 2001, 330). In has to be taken into account that for most of the whistleblowers the issue of having a job comes first and foremost from the fundamentals of the benefits that one gain in terms of income. Therefore, the protection to the whistleblowers by providing reinstatement can be seen as having crucial importance to the whistleblowers themselves. Lewis in his article on whistle-blowing at work also points out to the importance of having reinstatement provided by saying the “where workers have lost their jobs they should also have the option of choosing reinstatement or re-engagement” (Lewis 2001, 193).
According to Kohn, back pay “serves to ‘vindicate the public policy’ behind a wrongful discharge statute, at acts as a ‘deterrence’ to future unfair labor practices, and it serves to ‘restore’ the injured employee to the same ‘status quo’ as would have existed ‘but for the wrongful act'” (Kohn 2001, 332). These serves to provide the whistleblower with further protection on the basis of compensation; however the limitation of the back pay is that it is difficult to approximate the amount that the person would have earner have he or she stayed in the organization. Kohn states that back pay awards are continues and are concluded once the employer makes “unconditional offer of reinstatement” (Kohn 2001, 333).
After we have looked at the whistle-blowing concept and the protection that is proved to whistleblowers, we need to take a look at the legislation in Macedonia to see what kind of protection is offered, if any. Furthermore, we will continue with recommendations for whistle-blowing protection that the Government of Macedonia might consider to implement in future whistleblower policies.
Article 38 from the Law on free access to information of public character in Macedonia states that:
Any responsibility shall be removed from an employee within the state administration that shall disclose protected information, in case such information be of significance for the disclosure of abuse of power and corruptive behavior, as well as for the prevention of serious threats to human health and life and the environment (Law on free access to information of public character 2006).
In addition to this article, Article 20 from the Law on prevention of corruption in Macedonia provides that:
A person who has disclosed information indicating an act of corruption may not be subject to criminal prosecution or to any other liability; protection according to the law shall be provided to a person who has given statement or has testified in a procedure for an act of corruption. This person shall have the right to compensation of damages, which he/she or a member of his/her family has suffered, due to the statement made or testimony given (Law on prevention of corruption 2002).
These two articles from the legislation in Macedonia provide some legal protection to whistleblowers, however they do not protect the whistleblower fully. Article 38 from the Law on free access to information of public character in Macedonia states that person that would disclose information about wrong doings will be removed from responsibility, however the article does not define this responsibility and whether it refers immunity of legal prosecution. In addition, Article 20 from the Law on prevention of corruption limits the disclosed information only to acts of corruption, and similarly to the previous article again it does not define the protection of the whistleblower in a way that no further information is given about the form of the compensation of damages.
The following section of this paper provides the recommendation for an “ideal” whistleblowers protection and gives a recommendation on which of the measures or as we called them shields should be taken into consideration and drafted in a law by the Government of Macedonia.
In terms of anonymity, the author of this paper feels that it needs be taken into account that people sometimes choose not to blow the whistle when they consider this action to be vain. In addition to this, Miceli and Near point out that people sometimes “don’t want to take the time to make a report” (Miceli and Near 1992, 42). They furthermore stress that even thought “guaranteed anonymity may reduce this bias to some extend, it does not address the other problems” (Miceli and Near 1992, 42). Having said this, the author of this paper believes that further devolvement in policies that would address biased situation should be well and explicitly developed in the whistleblowers protection.
Recommendations on immunity refer closely to the discussion earlier about the Law on free access to information of public character in Macedonia and the need to clearly identify the removal of responsibility when disclosing wrongdoings and whether it refers to immunity of legal prosecution.
The whistleblowers protection should include actions for people that are attempting or conspiring in order to carry out reprisal over the whistleblower. These actions should include legal and disciplinary actions if a person engages in acts that would personally harm or threaten the safety of the whistleblower, would engage in acts of property damage or loss, intimidates, decreases level of employment and similar activities that might harm the white-blower.
The author of this paper believes that in terms of relocation or transfer, a recommendation for an ideal policy for whistle-blowing protection aside from the relocation and transfer should consider expanding this protection in a way that would provide as well leave of absence in case when no relocation or transfer is available at the moment. This in addition to the relocation and transfer shield would provide more efficient protection when there is any chance that the person blowing the whistle might be reprised.
The whistleblowers protection should clearly define reinstatement and back pays protection. In terms of reinstatement, it needs to be noted in the legislation that reinstatement must be to a “comparable job” (Kohn 2001, 333). The protection should clearly defined the process of back pay awards and if this process can last continuously until reinstatement of the employee has been brought up on the agenda of the employer. Further considerations might be given in defining the process of calculation in terms of time. This would imply that back pays can be calculate on quarterly basis which would imply that “employees’ interim earnings ‘in one particular quarter’ have no ‘effect on back pay liability for another quarter'” (Kohn 2001, 333), or they can be calculated on periods of six months which would reflect the current situation in Macedonia where usually no significant changes are seen in terms of promotions or raise on salary on shorted periods.
In conclusion, the articles provided in the legislation of Macedonia referred to some degree to immunity from legal action and to payment of damages to the whistleblowers as a result from inflicted damages from a given testimony. Thus, a whistleblowers protection is recommended that would give clear understanding of what constitutes a person that discloses wrongdoings, the opportunity for anonymity, reinstate or transfer as well as definitions of remedies that would follow these actions. Second and most important due to the effort of the Government of Macedonia to fight with corruption having a clear and well defined whistleblowers protection drafted in law that might lead to more rapid improvements when fighting and prevention corruption.
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