While whistleblowing must be encouraged to expose and combat wrongdoing in the workplace – where a major portion of human activity takes place – whistleblowers are often rejected and pay a heavy price for their actions, from social ostracism to lost employment opportunities.
The adverse reaction can be related to various factors, such as personal vengeance, the possible deleterious effect on the workplace or a suspicion that the whistleblowers are acting with ulterior motives and aim to gain personal benefits to which they are not entitled – for instance, protection against justified dismissal.
The following principles underpin the Whistleblower Protection Law:
- The whistleblower should be protected.
- The protection of whistleblowers should encourage other employees to report offences and thus prevent economic and social damage due to unreported offences in the workplace.
- The protection extended by the law is not absolute and unconditional. It specifically provides that the protection and remedies which it affords will be extended only to a complaint made by the employee in good faith and directed to the appropriate authority to investigate the complaint. A whistleblower who does not act in good faith may even be liable to compensate the employer or the employee complained against.
- The burden of proof – that the employer did not injure the employee as a result of the complaint – will be transferred to the employer only if the employee proves that his or her conduct did not justify the injury;
- If the court finds that the complaint was false and that the employee knew or should have known that it was false, the employee shall not be entitled to receive a remedy under the law and if the court further finds that the complaint was made in bad faith, the employee may be sued to pay compensation to the employer or to the employee complained against.
The following are examples of the application of the above principles:
- An employee is a candidate for dismissal due to a disciplinary breach on his or her part and is summoned to a hearing before a decision is made. Once the employee learns of this, he or she files a complaint against the superior who recommended the dismissal. The subject of the complaint is an offence allegedly committed by the superior a year previously, and of which the employee was aware soon after its occurrence. The employee is not entitled to protection under the law since such complaint does not meet the good-faith requirements. In addition, the burden of proof will not transfer to the employer since the employee cannot prove that his or her conduct did not justify dismissal.
- The employee publishes a complaint against his or her superior in the media, at a time when he or she is convinced that the complaint is true. However, in retrospect it transpires that it is false. The employer dismisses the employee. The fact that the complaint turned out to be false is not a lawful reason for dismissing the employee. However, the fact that the employee published the complaint in the media deprives the employee of protection under the law.
- An employee submits a complaint against his or her superior. The complaint is pending. At the same time the employee is involved in a disciplinary offence in respect of which he or she is summoned to a disciplinary investigation. The employee is demoted and transferred to another position. Meanwhile, the complaint is found to be true. The employer takes no measures against the employee due to the complaint, but also does not cancel the penalties imposed on the employee for the disciplinary breach. The employee is entitled to protection under the law with respect to the complaint but, should he or she file suit against the penalties, the claim will be dismissed since the employer can prove that the injury was not due to the complaint. In addition, the burden of proof will not transfer to the employer since the employee cannot prove that his or her conduct did not justify the injury.
The burden imposed on the employee under the law has been criticised since, in order for the burden of proof to be transferred to the employer, the employee must first prove that his or her conduct did not justify the injury.
In December 2013 a private bill was submitted to the Knesset to facilitate the transfer of the burden of proof to the employer: according to the bill, in order for the burden of proof to transfer, the employee need prove only that the employer was aware that he or she had submitted a complaint and that the injury to the employee occurred soon after.
The requirement of good faith incumbent on the whistleblower is relevant only to the protection extended by the Whistleblower Protection Law. In public and law-abiding private workplaces, whistleblowing requires the employer to take action and to act if the authorities are aware of the alleged offence. The good faith of the employee who exposed the offence is irrelevant in this regard.
For further information on this topic please contact Shoshana Gavish at S Horowitz & Co by telephone (+972 3 567 0700), fax (+972 3 566 0974) or email (firstname.lastname@example.org). The S Horowitz & Co website can be accessed at www.s-horowitz.com.