What is Whistleblowing?
The definition of "whistleblowing" in the Thesaurus of the International Labour Organization (ILO) is: "The reporting by employees or former employees of illegal, irregular, dangerous or unethical practices by employers."1 To protect both private and public-sector whistleblowers from occupational harm such as dismissal, suspension, demotion, forced or refused transfers, ostracism, reprisals, threats, or petty harassment, an increasing number of countries are adopting legislation on whistleblowing procedures.2 The global corruption-monitoring organization Transparency International has described whistleblowing as a 4-stage process3:
- First, a triggering event occurs, involving questionable, unethical, or illegal activities, and this leads an employee to consider "blowing the whistle";
- Second, the employee engages in decision-making, assessing the activity and whether it involves wrongdoing, gathering additional information, and discussing the situation with others;
- Third, the employee exercises voice by blowing the whistle; alternatively, the employee could exit the organization, or remain silent out of loyalty or neglect;
- Fourth, organization members react to, and possibly retaliate against, the whistleblower.
Usually, employees have the best access to information on illegal or unethical practices, and are usually the first to recognize wrongdoing. The overarching goals of whistleblowing legislation are to provide employees with a safe alternative to silence, and to empower employees to report wrongdoing by providing them with adequate legal protection.4
Regulatory Provisions on Whistleblowing
(i) UN Convention
Turkey ratified the United Nations Convention against Corruption ("UN Convention") on 9 November 2006. Pursuant to Article 90 of the Constitution of the Republic of Turkey, duly ratified international agreements have the force of law. In this respect, Article 33 of the UN Convention calls for adoption of national legislation for the protection from unjustified treatment of whistleblowers who report to the competent authorities – in good faith and on reasonable grounds – any facts concerning offences5 established under the UN Convention. However, no specific national regulations governing the procedure for whistleblowing have been adopted in Turkey to date.
(ii) ILO Convention
Turkey also ratified the ILO's Convention Concerning Termination of Employment at the Initiative of the Employer, numbered C158 ("ILO Convention"), on 4 January 1995, and the ILO Convention entered into force twelve months after its ratification was registered as law. Article 5 of the ILO Convention provides that the filing of a complaint or the participation in proceedings against an employer for violation of laws or regulations or recourse to competent administrative authorities should not constitute valid reasons for termination. Since the ILO Convention also has the force of law by virtue of its ratification, termination of employment as a form of retaliation against whistleblowers would violate the ILO Convention. A whistleblower whose employment is terminated as a form of retaliation is entitled to challenge such unjust termination before the competent labor courts in Turkey, and request compensation and/or restoration of his/her former employment.
(iii) OECD Guidelines
The government of Turkey is an adherent to the Guidelines for Multinational Enterprises issued by the Organization for Economic Co-operation and Development ("OECD Guidelines"). The OECD Guidelines state that multinational enterprises should refrain from discriminatory or disciplinary action against employees who make bona fide reports to management or, as appropriate, to competent public authorities, on practices that contravene the law, the OECD Guidelines or the enterprise's policies.6 The OECD Report dated 7 December 2007 stated that Turkey should strengthen measures to protect whistleblowers in the public and private sectors from retaliation and retribution by their employers7.
(iv) Labor Law
Although no regulations focusing on whistleblowing have been adopted in Turkey, there are none that prevent legal entities from adopting internal whistleblowing regulations as part of their policies and procedures. Such internal regulations on whistleblowing may thus become a part of the terms and conditions of employment.
An article entitled "Good Practice in Whistleblowing Protection Legislation," issued by the Anti-Corruption Resource Centre, states: "In principle, a well run organization has an interest to know about potential wrongdoing with the view to correcting it. People are also more likely to report wrongdoings within an organization when there are appropriate and trusted structures in place that offer different reporting options for individuals and guarantee absolute confidentiality."8 It has also been our recent experience that most multinational enterprises investing in Turkey increasingly adopt whistleblowing procedures as an integral part of their employment terms and policies. These integral regulations are adopted under the employee handbooks, which form an integral part of the employment contracts.
Due to the lack of specialized national regulations on the issue, we refer to the general principles of law to set the limits of both internal and external disclosure. The legal conformity of the course of action whistleblowers follow will determine whether whistleblowers have acted in genuine good faith and honesty.
The basis for differentiating between what to disclose and what to keep confidential lies in the nature of the information. The Labor Law9 imposes a duty of loyalty on employees, and if the disclosure violates the principles of good faith and integrity, it will not be protected by the law and would constitute valid grounds for the employer to terminate the employment. Disclosure of the employer's professional or trade secrets would be an example of this kind.
The boundary between such duty and whistleblowing may not always be distinguishable. The duty of loyalty imposed on the employees cannot be used as cover for concealing violations and wrongdoings under applicable legislation. A person's failure to disclose criminal activity he/she knows of is an offense under the Turkish Penal Code. Accordingly, anybody who (i) is aware of a crime being committed, or a crime already committed, but (ii) has failed to disclose such situation to the authorities is subject to criminal sanctions. Even if the motive and type of problems for which the whistle is blown call for distinguishing between the duty to inform and whistleblowing, their functionality and the need for protection of the disclosers is similar. Hence, the whistleblowing procedures usually also cover the internal disclosure process for any type of corruption and/or harassment issue, which most of the time leads to internal disciplinary actions in addition to other applicable legal and criminal sanctions, such as fines, other security measures and even imprisonment.
The Need for Whistleblowing
Limiting the scope of whistleblowing protection to disclosures by employees of the public and/or private sector, as opposed to extending across-the-board protection to any member of the public, is justified by the fact that although members of the public can also experience reprisals if identified as whistleblowers, employees require stronger legal protection as their institutional connection to their employer makes them especially vulnerable.10
Whistleblowing protection is increasingly recognized as a key factor in promoting a culture of public accountability and integrity.11 Amongst other things, whistleblowing can be an act of free speech, an anti-corruption tool, or an internal dispute management mechanism.12 Barriers to whistleblowing, such as fear of retaliation and cultural mores, may be overcome through the ideal protective measures stipulated under the law, together with the internal guidelines adopted by the enterprise itself. The principles of corporate governance also value whistleblowing as the means for maintaining accountability and transparency for the management of enterprises.
Footnotes
1. ILO Thesaurus 2005, INFORM Bureau of Library and Information Services, International Labour Organization, http://www.ilo.org/public/libdoc/ILO-Thesaurus/english/tr2695.htm
2. Marie Chêne, Good Practice in Whistleblowing Protection Legislation (WPL), Anti-Corruption Resource Centre (1 July 2009), 2-6, http://www.u4.no/helpdesk/helpdesk/query.cfm?id=207
3. See Marcia P. Miceli and Janet P. Near, Blowing the Whistle: The Organizational and Legal Implications for Companies and Employees (New York: Lexington Books, 1992), cited in Terry Morehead Dworkin and Melissa S. Baucus, Internal v. External Whistleblowers: A Comparison of Whistleblowing Processes, 17 J. Bus. Ethics 1281-198 (1998).
4. Chêne, 2.
5. The offenses established under the UN Convention against Corruption are money-laundering, bribery of national public officials, bribery of foreign public officials, bribery in the private sector, trading in influence, embezzlement of property, laundering of the proceeds of crime, etc.
6. Guidelines for Multinational Enterprises issued by the OECD, Section II, General Policies, 14.
7. Turkey: Phase 2, Report on the Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 1997 Revised Recommendation on Combating Bribery in International Business Transactions, 7 December 2007.
8. Chêne, 5.
9. Law No. 4857, published in the Official Gazette dated 17 June 2003, numbered 25141.
10. Chêne, 2, 6.
11. Ibid., 1, 3, 5, 9-10.
12. David Banisar, Whistleblowing International Standards and Developments, Instituto De Investigaciones Sociales, UNAM, http://www.corrupcion.unam.mx/documentos/investigaciones/banisar_paper.pdf
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.