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.

“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.

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:

(a) 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;

(b) ensure that the investigations are carried out fairly;

(c) 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;

(d) make recommendations regarding measures to be taken to correct the improper conduct;

(e) take steps to remedy the improper conduct, provide redress where appropriate, and reduce the opportunity for recurrence of the conduct;

(f) ensure the rights of the employee making the disclosure, any witness and any person alleged to be at fault, are protected; and

(g) 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:

(a) 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;

(b) the subject matter of the disclosure is deemed frivolous or not sufficiently important to warrant an investigation; and

(c) the circumstances surrounding the subject matter of the disclosure have changed so that it renders an investigation unnecessary.