If the “whistle-blower” has been dismissed from office, management should prove the validity of such a decision

“Law and Business”reports: A person who has received the status of a whistleblower cannot be dismissed, and must not be subjected to other harassment in the workplace. If the dismissal occurred, it should not have a causal connection with the statement of the accuser. It is the responsibility of management to prove the absence of such a connection. This was stated by the Supreme Court (judgment of 08/15/2019).

Retribution for Complaint

In 2017, a customs officer informed his boss that his colleague had unlawfully released an overseas vessel from customs control. The report noted that the customs offender allegedly has a private interest in the legal entity that owns the water crafts. Therefore, his actions are a direct violation of the Law on the Prevention of Corruption.

In addition to his leadership, the applicant informed the Prosecutor General’s office, which redirected the document to the regional prosecutor’s office. The State Fiscal Service was also informed and also sent materials to the regional prosecutor’s office. Regional prosecutor’s office opened the criminal proceeding under article 365 of the Criminal Code against several customs officials indicated in the memos.
Attempts of the customs officer did not go unnoticed at his place of work. The management imposed 2 disciplinary sanctions on the complainant, subsequently changed his working conditions, and later excluded the employee’s position from the staff list.

The man appealed all the orders to the court. He demanded to recognize them as illegal, and at the same time to recover monetary compensation.

The first instance dismissed the claim. But the court of appeal, after having reviewed the case, decided to satisfy the claim regarding the cancellation of orders on disciplinary proceedings.
Customs officials appealed the verdict to the court of cassation. They insisted on the legality of the penalties and requested to uphold the decision of the first instance.

Conflict of interests

In the order No. 815 / 2074/18, the Administrative Court of Cassation indicated a conflict of interest that arose in the disciplinary commission during deciding whether to bring the accuser to justice. So, disciplinary proceedings were initiated, and its consideration was carried out by individuals in respect of the person who sent memos to law enforcement agencies. So, it is indicated in the order, that the individuals had a contradiction between their private interests regarding the plaintiff and official authority, which could affect the objectivity or impartiality in their decision-making.

Since these persons did not pay attention to it, decisions and orders issued by them are illegal and must be canceled. Therefore, the Court of Appeal considers that the conclusion of the Supreme Court was correct.

At the same time, the Supreme Court found premature the conclusions on the legality of making changes to the staffing table. The fact is that a person acquires the status of the whistle-blowers( the one who assists in the prevention and counteraction to corruption) from the moment when all his actions are taken to inform the proper addressee that another person has violated the anti-corruption law.

From the moment this status comes into effect, a person has certain immunity, neither this person nor his family members can be fired or forced to release, disciplined or subjected to other negative measures by the head or employer (certification, change of conditions labor, refusal to appoint to a higher position, reduction of wages, etc.) or any other threat of such measures of influence.

At the same time, this immunity is not absolute and has certain boundaries. First of all, there should be a connection between negative measures of influence or the threat of their application and notification of the accuser about violation of the requirements of the anti-corruption law by another person.

The following circumstances can testify to the existence of a connection, in particular: a certain sequence of events (first, reporting the facts of corruption, then applying negative consequences to the exposer, and not vice versa); the proximity in time of these events (negative consequences for the accuser came soon after they were informed) the presence of various kinds of threats against the accuser after they were informed; in the past (prior to the moment of communication) absence of claims against the employee, particularly by persons whose corruption acts were reported.

Verification of the presence or absence of these circumstances will allow us to confirm the absence or presence of a causal link between the issuance of controversial orders with the performance of the plaintiff as a convict.

The courts of the previous instances ignored the plaintiff’s arguments that it was precisely after the fact of corruption was reported to him that the defendant took a couple of negative measures, including the publication of controversial orders.

Also disregarded were the plaintiff’s arguments that the defendant (the subject of authority) was obliged to prove the absence of a causal link between reports of corruption and the use of negative measures of influence. At the same time, the establishment of this circumstance is crucial for the resolution of the dispute.

The Supreme Court also noted that the courts need to investigate the purpose of the defendant while contributing the changes to the staff list, whether such measures were reasonable and at the same time necessary.

Therefore, the applicants’ complaints were partially satisfied, and the case itself was referred to the first instance for a new consideration.

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