Acting in good faith and in the public interest: Protecting whistleblowers

(Final Part)

Last week we began the examination of the Protected Disclosures (Whistleblower) Bill 2015. Our previous articles on the subject referred to the practice in the Caribbean and elsewhere. My good friend, Chris Ram, drew to my attention Articles 32-33 of the Constitution which state that “32. It is the joint duty of the State, the society and every citizen to combat and prevent crime and other violations of the law and to take care of and protect public property. 33. It is the duty of every citizen to defend the State.” I should thank Mr. Ram for pointing out the above constitutional requirements and therefore premise my argument not only on the prevailing practice in other countries but also, more importantly, on those requirements.

Additionally, whistleblower protection is an important aspect in any fight against corruption. If the draft legislation is passed in the National Assembly and the Act fully operationalised, we are likely to see a further improvement in Guyana’s ranking and score on the Corruption Perceptions Index (CPI). It will be recalled that, based on the 2016 assessment carried out by Transparency International, Guyana’s score increased from 29 to 34 which was the third highest improvement among the 176 countries surveyed. If by 2025, we could achieve the 50% mark on the CPI (an average increase of 1.45% per annum), it will be one of our greatest achievements, considering that over two-thirds of the countries surveyed fell below that mark. Indeed, the global average is 43, indicating endemic corruption in a country’s public sector.

Today, we conclude our examination of the remaining parts of the Bill.

Part III – Provisions against occupational detriment

“Occupational detriment” is any act or omission that results in an employee being subject to various forms of disciplinary or retaliatory action such as termination, suspension or demotion; harassment, intimidation or victimization, among others. An employee shall not be subjected to occupational detriment on the basis that he/she seeks to make, has made, or intends to make, a protected disclosure. Protected disclosure is the disclosure of information made by an employee, regarding the conduct of an employer of that employee or another employee of the employer, where the employee has a reasonable belief that the information disclosed shows or tends to show that improper conduct has occurred, is occurring or is likely to occur. Disclosure does not qualify for protection under the Act unless it is made in good faith and in the public interest.

If a person is dismissed for seeking to make, making or intending to make a protected disclosure, he/she is treated as having been unfairly dismissed. Where an employee suffers occupational detriment within the same period that he/she makes a protected disclosure, the occupational detriment shall be presumed to be a consequence of the protected disclosure, unless the employer shows that the act that constitutes the occupational detriment is otherwise justified.

Part IV – Receiving, investigating and otherwise dealing with disclosures

Every person to whom a disclosure is made shall receive the disclosure and take appropriate measures to investigate or cause the disclosure to be investigated. The disclosure is to be recorded and if it meets the requirements set out in the Act for an investigation to be launched, the person shall:

 

  • commence investigations immediately and issue periodic updates to the employee making the disclosure, at intervals of 14 days until the disclosure has been fully investigated or otherwise dealt with;
  • ensure that the investigations are carried out fairly;
  • review the results of the investigations and report the findings to the concerned employee or to any other person appearing to be appropriate having regard to the improper conduct and the area of responsibility of that other person;
  • make recommendations regarding measures to be taken to correct the improper conduct;
  • take steps to remedy the improper conduct, provide redress where appropriate, and reduce the opportunity for recurrence of the conduct;
  • ensure the rights of the employee making the disclosure, any witness and any person alleged to be at fault, are protected; and
  • receive, record, review, investigate and otherwise deal with complaints made in respect of reprisals as a result of a disclosure made under the Act.

An employer or other person to whom a disclosure is made, may, acting in good faith, refuse to deal with the disclosure, or commence an investigation or cease an investigation in the following circumstances:

 

  • the subject matter of the disclosure or the related investigation has been adequately dealt with, or could more appropriately be dealt with by another person;
  • the subject matter of the disclosure is deemed frivolous or not sufficiently important to warrant an investigation; and
  • the circumstances surrounding the subject matter of the disclosure have changed so that it renders an investigation unnecessary.

Where an employer decides to refuse to carry out an investigation, the employer shall provide reasons in writing to the employee within 15 days of the decision. If the employee is not satisfied with the refusal to carry out the investigation, he/she may make a protected disclosure to any other person to whom a disclosure may be made under the Act.

Any provision of an agreement shall be void and of no effect if it precluded an employee from making a protected disclosure or requires an employee to: (i) agree not to make a disclosure during or after his/her period of employment; (ii) refrain from instituting any proceedings pursuant to the Act; or (iii) withdraw or abandon any disclosure made or proceedings instituted.

Part V – Oversight functions  

The Minister is required to designate an individual or entity as the Designated Authority responsible for monitoring compliance with the Act. The Designated Authority may adopt whatever procedure it considers appropriate to the circumstances of a particular case, and may obtain any information from such person and in such manner and make such enquiries as it thinks fit.

The Designated Authority may at any time require a person, who in its opinion is able to give any assistance in relation to an investigation of any disclosure, to furnish information and produce any document in the possession or under the control of that person. It may also summon and examine on oath any person who has made representation to the Authority or any other person who in the opinion of the Designated Authority is able to furnish information relating to the investigation. The Designated Authority shall have the same powers as a Judge of the High Court in respect of the attendance and examination of witnesses and the production of documents.

After conducting an investigation, the Designated Authority shall inform the concerned employer in writing of the results of the investigations and any recommendations made. Where the employer is a public authority, the concerned Minister is informed. If it is found that there is evidence of a breach of duty, misconduct or criminal offence on the part of an officer or member of a public body, the Authority shall refer the matter to the person or persons competent to take disciplinary or other actions against that officer or member.

Other functions of the Designated Authority include:

  • publish procedural guidelines regarding making, receiving, and investigating disclosures, as it considers appropriate;
  • provide assistance to any person seeking to make a disclosure, and to any person who is a designated officer, employer or other person;
  • plan, implement and monitor public awareness programmes; and
  • within six months of the close of the year, transmit to the Minister a report of the activities of the Authority during the preceding year, a copy of which shall be tabled in the National Assembly.

Part VI – Miscellaneous

A person commits an offence, if he/she:

  1. prevents, restrains or restricts any employee from making a protected disclosure;
  2. intimidates any employee who has made or intends to make a protected disclosure;
  3. induces any person by threats, promises or otherwise contravene the Act;
  4. being an employer, (i) subjects an employee to occupational detriment as a consequence of the employee making a protected disclosure; or (ii) refuses, in bad faith, to receive a disclosure and to carry out an investigation, or ceases an investigation in relation to a disclosure;
  5. being an employee, purports to make a disclosure knowing that it contains a statement that is false, misleading or reckless;
  6. aids, abets, procures or conspires with any other person to contravene the Act;
  7. without reasonable cause, fails to comply with a requirement imposed by the Designated Authority.

A person who commits an offence under (a) to (f) is liable upon summary conviction to a fine of $2 million and to imprisonment for a term of two years, or upon conviction on indictment to a fine of $3 million and to imprisonment for a term of five years. In the case of (g), upon summary conviction, the person is liable to a fine of $250,000 and imprisonment for a term of three months.

Every person receiving, investigating or otherwise dealing with a disclosure shall regard and deal with as secret and confidential: (i) the identity of the employee making the disclosure and any disclosure made; and (ii) any statement given, or document or information provided to the person carrying out the investigation. A person who contravenes any of these two requirements is liable on summary conviction to a fine of $2 million and to imprisonment for a term of two years.

Finally, the Minister may make regulations, subject to affirmative resolution of the National Assembly, for carrying out the purposes of the Act, including procedures to be applied in making, receiving and investigating disclosures; the forms to be used; and provisions for the operations of the Designated Authority.

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