Abstract
The article discusses the question of protection of employees and civil servants who report corruptive and other illegal and improper conduct of their employers or other persons in the Republic of Slovenia. While they are specifically protected by provisions of the Integrity and Prevention of Corruption Act in case they report corruption, they are only protected by general rules of labour law in case they report other improper conduct, for instance by rules referring to the protection against harassment and mobbing, illegal termination of employment contract and employer’s liability for damages.
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Notes
- 1.
See annual reports on the work of the Commission for the Prevention of Corruption for particular years. Available at www.kpk-rs.si/sl/komisija/letna-porocila.
- 2.
According to the report by Transparency International (Whistleblowing in Europe: Legal protection for whistleblowers in the EU (2013), p. 8), Slovenia, together with Luxembourg, Romania and the Great Britain, ranks in the group of countries with the most adequate legal protection.
- 3.
Conclusion about the need for adequate implementation of legislation in practice can also be derived from the report on the situation in Slovenia, included in the report Whistleblowing in Europe, pp. 77–78.
- 4.
In decisions of the Supreme Court of the RS and Higher Labour and Social Court.
- 5.
See for example Vuksanović I., Poziv za specialno zakonsko ureditev zaščite »žvižgačev«, Pravna praksa 45/2010, pp. 8–10.
- 6.
See the website of the Commission for the Prevention of Corruption, where papers, presented at conferences organized by the Commission, are published. Available at www.kpk-rs.si/sl/korupcija-integriteta-in-etika/integriteta-in-etika/eticno-in-zdravo-okolje.
- 7.
Society Transparency International Slovenia initiated a project Speak Up (Spregovori) and established the Advocacy and Legal Advice Centre for persons reporting corruption. See www.spregovori.transparency.si/sl/.
- 8.
Official Gazette of RS – MP, No. 8/2003 of 11th April 2003.
- 9.
Official Gazette of RS – MP, No. 5/2008 of 4th March 2008.
- 10.
Official Gazette of RS, No. 45/2010, 26/11.
- 11.
See Art. 1 of the ZIntPK.
- 12.
According to the first item of Art. 4 of the ZIntPK, a “corruption” means any violation of due conduct by officials and responsible persons in public or private sector, as well as conduct of persons initiating such violations or of persons benefiting from it, for the purpose of undue benefit promised, offered or given directly or indirectly, or for the purpose of undue benefit demanded, accepted or expected for one’s own advantage or to the advantage of any other person.
- 13.
See also Kečanović B, Zaščita posameznika, ogroženega zaradi razkrivanja korupcije, p. 2, available at www.kpk-rs.si/sl/korupcija-integriteta-in-etika/integriteta-in-etika/eticno-in-zdravo-okolje.
- 14.
It is an autonomous and independent state body, which carries out tasks to prevent corruption, to enhance the rule of law, and to strengthen integrity and transparency in the society. See Article 5 of the ZintPK.
- 15.
In 2010, the Commission has protected the identity of the reporting person (with a pseudonym) in one case, in 2011 in 13 cases, in 2012 in 14 cases and in 2013 in 10 cases. See the Commission for the Prevention of Corruption, Annual report 2013, p. 80.
- 16.
For a situation when a malicious report has been filed and elements of criminal offence were not established, the ZIntPK imposes a fine for offence of between 1,000 and 2,000 EUR (first section of paragraph 2 of Art. 77 of the ZIntPK). During the period of the Commission for the Prevention of the Corruption’s performance, four malicious reports were filed – two in year 2011 and two in year 2013 (Commission for the Prevention of Corruption, Annual report 2013, p. 80).
- 17.
A fine for offence of between 400 and 1,200 EUR shall be imposed on an individual who in contravention of the provision of paragraph 4 of Art. 23 of the ZIntPK attempts to establish the identity of the reporting person; a fine of between 1,000 and 2,000 EUR shall be imposed on an individual who in contravention of the provision of paragraph 4 of Art. 23 of the ZIntPK discloses the identity, and a fine of between 400 and 4,000 EUR on a responsible person of a state body, local community body, holder of public authority, and legal person governed by public or private law which, in contravention of the provision of paragraph 4 of Art. 23 initiates a procedure for the establishment or disclosure of the identity of the reporting person due to the report being filed by this person (in the latter case, a fine for offence of between 400 and 100,000 EUR shall also be imposed on a holder of public authority or other legal peson governed by public or private law, with the exception of the Republic of Slovenia and local communities; as provided in Article 78 of the ZintPK).
- 18.
Official Gazette of RS, No. 113/2005, 61/06 and 110/2007.
- 19.
See Article 29 of the ZZPrič.
- 20.
Official persons are officials, high-ranking civil servants, and other public servants, as well as managers, and members of the management and supervisory boards of public sector entities. See Item 8 of Article 4 of the ZIntPK.
- 21.
The Commission has provided protection for an official person in five cases (all in 2012). See the Commission for the Prevention of Corruption, Annual report 2013, p. 80.
- 22.
The employer’s liability for damage caused by the employer to the employee due to infringement of employment rights, and especially the employer’s liability for damages in the event of unequal treatment, harassment of employees or mobbing is also stipulated in labour legislation (see section “Protection of employees and civil servants against unfounded measures by their employer”).
- 23.
This includes responsible persons of all employers (state body, local community body, holder of public authority, or other legal person governed by public or private law).
- 24.
Provision in Article 78 of the ZintPK applies to all the employers (holders of public authority or other legal persons governed by public or private law), with the exception of the Republic of Slovenia and local communities.
- 25.
Also official persons who have reported unethical or illegal conduct.
- 26.
The Commission has thus far provided such assistance in four cases (in year 2012). See the Commission for the Prevention of Corruption, Annual report 2013, p. 80.
- 27.
The Commission has so far only submitted one such request (in year 2011). See the Commission for the Prevention of Corruption, Annual report 2013, p. 80.
- 28.
Burden of proof that rests with the employer in cases of discrimination, harassment and mobbing, as well as termination of the employment contract, is also stipulated in labour legislation (see section “Protection of employees and civil servants against unfounded measures by their employer”).
- 29.
Even though this is not explicitly stipulated by the law, mostly transfers to another body will be suitable (for example, from one ministry to another).
- 30.
Up to now, the Commission for the Prevention of Corruption has not yet been informed of any such requests. See the Commission for the Prevention of Corruption, Annual report 2013, p. 80.
- 31.
Special provisions regarding the protection of employees who report irregularities are provided only by Banking Act (Zakon o bančništvu, Official Gazette of RS, No. 25/2015; ZBan-2), which requires banks to protect employees who internally (to the employer) report breaches of banking regulations and the bank’s internal acts, or report breaches to the Bank of Slovenia. See Articles 140 and 239 of ZBan-2.
- 32.
Official Gazette of RS, No. 50/2012-UPB2.
- 33.
Official Gazette of RS, No. 21/2013.
- 34.
Official Gazette of RS, No. 63/2007 UPB-1, 65/2008.
- 35.
These principles apply to all civil servants, both those who are employed in state bodies and local communities, and those who are employed in public institutions, public agencies, public funds, and other entities of public law that indirectly use state or local budgetary funds.
- 36.
Everything stated below with regard to the protection of employees against these conducts applies to both employees and civil servants.
- 37.
Official Gazette of RS, No. 43/2011.
- 38.
This is a new regulation of compensation in case of harassment and mobbing, by which provisions from the EU directives that refer to the prohibition of discrimination were implemented in Slovenian legislation. For more, see Kresal, B., Kaj prinaša novi zakon o delovnih razmerjih, Delavci in delodajalci 1/2013, pp. 57, 58.
- 39.
Prior to extraordinary termination of the employment contract, the employee must remind the employer in writing to comply with his obligations and inform the Labor Inspectorate of the violation in writing. If within a period of three working days the employer fails to fulfil his obligations or fails to rectify the violation, the employee may terminate the employment contract within a 30-day period.
- 40.
The employer (a legal person, a sole proprietor or a self-employed person) shall be punished by a fine of between 3,000 and 20,000 EUR; smaller employer (with ten or less employees) by a fine of between 1,500 and 8,000 EUR; an individual employer by a fine of between 450 and 1,200 EUR; and a responsible person of the employer (of a legal person, but also in a state body or a local community) by a fine of between 450 and 2,000 EUR.
- 41.
The proposal can be made by either employee or employer, and the court may grant compensation instead of reintegration, if it has been established that with regard to all the circumstances and interests of both contracting parties, the continuation of the employment relationship would no longer be possible. See Art. 118 of the ZDR-1.
- 42.
Only bank employees are also subject to special regulation in accordance with ZBan-2. Bank shall adopt measures to protect employees who report breaches of banking regulations via internal reporting lines to the bank or to the Bank of Slovenia against retaliatory acts, discrimination or other forms of inappropriate treatment.
- 43.
According to Art. 213 of the ZDR-1, an economically dependent person is a self-employed person who on the basis of a civil law contract performs work in person; for remuneration, independently and for a longer period of time in circumstances of economic dependency, and does not employ employees himself. Economic dependency means that a person obtains at least 80 % of his or her annual income from the same contracting partner (client).
- 44.
Official Gazette of RS, No. 31/2012 ZKP UPB8.
- 45.
In which case the reporting person can only inform the commission or criminal law enforcement authorities (paragraph 2 of Art. 23 of the ZIntPK).
- 46.
Only employees in banks are given a special protection. Banks shall protect the identity of employees who have reported breaches of banking regulations and the bank’s internal acts, as well as adopt measures to prevent retaliatory acts, discrimination or other forms of inappropriate treatment of these employees, and measures to reverse the consequences of retaliatory acts, if inappropriate treatment has nevertheless occurred.
Bibliography
Commission for the Prevention of Corruption, Annual report 2013. https://www.kpk-rs.si/sl/komisija/letna-porocila. Accessed April 2015
Criminal Code (Kazenski zakonik, KZ-1), Official Gazette of RS, No. 50/2012-UPB2
Criminal Procedure Act (Zakon o kazenskem postopku, ZKP), Official Gazette of RS, No. 31/2012 ZKP UPB8
Employment Relationship Act (Zakon o delovnih razmerjih, ZDR-1), Official Gazette of RS, No. 21/2013
Integrity and Prevention of Corruption Act (Zakon o integriteti in preprečevanju korupcije, ZIntPK), Official Gazette of RS, No. 45/2010, 26/11 and 43/11
Banking Act (Zakon o bančništvu, ZBan-2), Official Gazette of RS, No. 25/2015
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Kečanović B, Zaščita posameznika, ogroženega zaradi razkrivanja korupcije, page 2. https://www.kpk-rs.si/sl/korupcija-integriteta-in-etika/integriteta-in-etika/eticno-in-zdravo-okolje. Accessed April 2015
Kresal B, Kaj prinaša novi zakon o delovnih razmerjih, Delavci in delodajalci 1/2013, pp. 55–75
Vuksanović I (2010) Poziv za specialno zakonsko ureditev zaščite »žvižgačev«, Pravna praksa 45/2010, pp. 8–10.
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Peček, D.S. (2016). Protection of Persons Reporting Corruption and Other Whistleblowers in the Republic of Slovenia. In: Thüsing, G., Forst, G. (eds) Whistleblowing - A Comparative Study. Ius Comparatum - Global Studies in Comparative Law, vol 16. Springer, Cham. https://doi.org/10.1007/978-3-319-25577-4_14
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