§ 22 ods. 5

Act No. 54/2019 Coll.

on the protection of whistleblowers of antisocial activities and on the amendment and supplementation of certain laws, as amended

 

How to make announcement:

Electronically - oznamovatelia.sk/chcem-oznamit
By post / in person at the address - Námestie slobody 29, 811 06 Bratislava

 

Contact details of the Office for the purpose of providing advice:

Telephone line: 0800 221 213
Námestie slobody 29, 811 06 Bratislava
e-mail: [email protected]

 

Receipt and registration of the report

All reports received shall be registered in a filing system to which only those involved in their receipt and examination shall have access. Reports are subsequently recorded in a special register, with an emphasis on protecting the identity of the whistleblower and maintaining confidentiality in accordance with the Whistleblowers' Protection Act. Access to the register of reports shall also be restricted to those involved in the receipt and review of the reports. Upon receipt of a report, the whistleblower shall be notified of its receipt within 7 days. If the report is received via an online form, the whistleblower is notified automatically.

 

Review of the report

The persons involved in the examination of the notifications have a legal background. The lawyers shall communicate with the whistleblower once the notification has been registered and shall maintain confidentiality of the identity of the whistleblower, the persons concerned and the facts established throughout the review process. If the notification needs to be supplemented with additional information or evidence, the lawyer shall immediately contact the whistleblower with a request for supplementation. If the whistleblower fails to communicate for a prolonged period of time and the lawyer lacks essential information to verify the notification, the lawyer shall terminate the review.

 

The lawyer will always check whether the submission can be considered as a report of anti-social activity. If it is not a notification under the Whistleblower Protection Act or there are other grounds for refusal, the lawyer shall inform the whistleblower of the reasons and, where appropriate, suggest an alternative way of dealing with his/her report to the relevant state institutions.

 

In the event of a relevant report, the lawyer will suggest legal steps that can be taken to achieve redress or resolution as soon as possible.

 

The most common legal actions include:

• Forwarding the report or drafting a criminal complaint and delivering it to the relevant law enforcement authority, such as the public prosecutor's office, for further criminal proceedings.
• Forwarding the report or drafting the complaint and delivering it for further administrative proceedings to the competent administrative authority, such as: the Public Procurement Office, the National Labour Inspectorate, the Slovak Environmental Inspectorate, the Public Health Office of the Slovak Republic, the Antimonopoly Office of the Slovak Republic, the Supreme Audit Office of the Slovak Republic, and the like.
• Directing the whistleblower to the internal whistleblowing system of his/her employer in case the reported unlawful activity is supposed to take place at the employer and there is no reason to proceed otherwise.
• Initiation of an inspection for breach of duty in the area of the internal system for the review of reports.
• Initiation of administrative proceedings for the imposition of a fine for breach of obligations in the area of the internal reporting review system.
• Initiation of offence proceedings, for example, if someone hits a whistleblower in connection with making a report or breaches the obligation of confidentiality of the identity of the whistleblower or the person concerned.

 

Protecting the identity of the whistleblower and informing the whistleblower

In the event of a referral, as well as other legal actions, the lawyer will ensure that the identity of the whistleblower is protected in accordance with the Whistleblower Protection Act. The lawyer shall seek the consent of the whistleblower to forward the report and, if the whistleblower does not wish to forward the report with his or her identifying information, the lawyer shall forward the report in an anonymised form.
The Authority shall keep the whistleblower informed of the status of the proceedings and shall provide advice to the whistleblower as necessary. If the competent authority for the review of the report delivers the result of the investigation of the report to the Authority, the lawyer shall inform the whistleblower of the investigation without delay.

 

Whistleblower protection procedures

Protected whistleblower status

Whistleblowers may apply for protected whistleblower status when reporting serious anti-social activity to the prosecutor or the administrative authority competent to investigate the report. This is the case, for example, for reporting crimes by public officials, fraud, breach of duty in the management of foreign property or embezzlement.

 

In the case of administrative offences, these include, for example, environmental negligence, breaches of public procurement obligations or the unlawful handling of medicinal products for human use.

 

If the prosecutor or administrative authority grants the whistleblower protected whistleblower status, in practice this means that the employer cannot take any employment action against the whistleblower that the whistleblower does not agree to without the authority's consent. Most often, this involves the Authority giving its consent to the termination of employment. Consent to an employment action is the highest possible level of protection for the whistleblower, as it is a precautionary protection for the future.

 

The protected whistleblower status ceases:

(a) by delivery to the Authority of a written notice from the protected whistleblower waiving protection,
(b) the termination or cessation of the protected whistleblower's employment relationship,
(c) on the expiry of three years from the end of the criminal or administrative offence proceedings; however, the protection shall not lapse if the criminal proceedings are terminated by the referral of the case to another authority,
(d) a conviction of a protected whistleblower for the offence of perjury or for the offence of perjury in connection with the making of a qualifying communication; or
(e) by delivery of a written notice to the employer by the protective authority if it is shown that the qualified notice is not a bona fide act.

 

Suspension of the effectiveness of an employment act

The Whistleblower Protection Act also provides whistleblowers with the possibility to apply to the Office for so-called after-action protection, which consists in suspending the effectiveness of an employer's employment action already taken against the whistleblower. In particular, this may be a dismissal, and in assessing this request, the Office examines whether the employer has dismissed the whistleblower on the grounds of the whistleblowing, in other words, whether the employer has retaliated against the whistleblower.

The whistleblower must make the request within 15 days of becoming aware of the employment action. The difference from the so-called protected whistleblower status is also that the request for suspension of an employment act is not linked to the notification of serious anti-social activity pursuant to Section 2(d) of the Whistleblower Protection Act, but may also be, for example, a notification received by the employer's responsible person within the framework of the employer's internal system for receiving and verifying notifications (Section 10(1) of the Whistleblower Protection Act). If the authority suspends the effectiveness of an employment act, the whistleblower may challenge the legality of such act in court within 30 days (§12). The whistleblower also has the possibility to apply for free legal aid from the Legal Aid Centre. In these cases, the whistleblower is entitled to legal aid even if he or she does not meet the criterion of material hardship.

 

Who is a whistleblower according to the law

A whistleblower is a natural person who, in good faith, makes a notification to the authority competent to receive the notification, i.e. to the authority, the public prosecutor's office or the administrative authority competent for administrative offence proceedings, or to the employer;

 

 

A whistleblower is also one who makes a report in good faith, that is, one who is convinced of the truth of his or her findings:

 

1. makes a report and whose employment or other similar relationship has endedif he or she has become aware of information about anti-social activity during this employment relationship or any other relationship such as volunteering, internship, activity of a self-employed person under contract, etc.,

2. he makes a report and his employment or other similar relationship has not yet been establishedwhere he or she has become aware of information about anti-social activity during the selection procedure or in the context of pre-contractual relations,

3. made the report anonymously and his or her identity has been revealed,

4. published information on anti-social activitieswhich came to his knowledge during the selection procedure or in the context of pre-contractual relations and his employment or other similar relationship has not yet come into existence, or during the duration of the employment or other similar relationship or after the termination of the employment or other similar relationship.

 

 

However, a whistleblower can only claim protection if he discloses the information on the grounds that:

 

4a. has made a report through the internal report review system and has not been informed of the outcome of the review of the report or appropriate action has not been taken, and has subsequently made such report to the authority competent to receive the report and has not been informed of the status of the review or the outcome of the review within a reasonable period of time,

4b. has made a report to the authority responsible for receiving the report and has not been informed within a reasonable period of time of the status of the review or the outcome of the review,

4c. there is a reasonable apprehension that the anti-social activity may constitute an imminent or obvious threat to the public interest, or

4d. there is a reasonable apprehension that it would be subject to a sanction if it were to make a report to the authority responsible for receiving the report, or, in the particular circumstances of the case, that the authorities responsible for receiving the report will not ensure an impartial and independent verification of the facts set out in the report. These are therefore cases where there is an obvious conflict of interest and there is no reasonable expectation that the institution would resolve it objectively and impartially.

 

Who else may be protected

They can also apply for protection to others if they face retaliation in connection with a report filed by someone else. This may include:

(a) a person close to the whistleblower,

(b) a natural person - entrepreneur or a legal person which the whistleblower controls, in which he/she has an interest, in which he/she performs the function of a member of a body of a legal person or for which he/she performs an employment activity,

(c) a natural person - entrepreneur or a legal person who controls a legal person in which the whistleblower has a participation or in which the whistleblower performs the function of a member of the body of the legal person,

(d) the person who provided assistance to the whistleblower in connection with the report; and

(e) the responsible person or person involved in the performance of the responsible person's tasks.

Retaliation may be, for example, dismissal, suspension, disciplinary action, change of place of work, coercion, intimidation, non-renewal of a fixed-term contract, early termination of a contract, etc.

If these persons believe that, for example, a dismissal or other employment action taken against them by their employer is a sanction for the whistleblowing (and they are related to the whistleblower or have provided assistance to the whistleblower), they may also apply to the Office to suspend the employment action (see "Suspension of the employment action"). They may also apply to the court and seek redress or compensation for non-pecuniary damage.

The whistleblower or the aforementioned persons may also apply to the Authority to initiate offence or penalty proceedings against the employer.

Sanctions

In addition to the above protection of the whistleblower (and other persons), the protection of the whistleblower also lies in the possibility for the Office to impose a fine on the person who:

(a) threatens, attempts or penalises the whistleblower in connection with the making or publication of the communication,

(b) breaches the obligation of confidentiality concerning the identity of the whistleblower or the identity of the data subject; or

(c) if he or she attempts to prevent or obstruct the making or publication of the communication, if proven guilty. If the perpetrator is proven guilty, it is an offence within the meaning of section 18 of the Whistleblower Protection Act.

The Whistleblower Protection Office may also impose a fine on an employer who takes an employment action against a whistleblower without the Office's consent if consent is required or if the employer threatens or attempts to retaliate against the whistleblower or others (see "Who Else May Be Protected") .

Informácie o spracúvaní osobných údajov podľa osobitného predpisu.