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20 December 2017
The Supreme Court recently found that an employee who notifies the judicial authorities of facts relating to his or her employer which constitute evidence of criminal activity cannot be dismissed for just cause.
As regards the disciplinary liability of whistleblowing employees, it is insufficient for a complaint to be unfounded, as this does not prove that the complaint was slanderous.
According to Supreme Court Sentence 26867/17, a single complaint to the judicial authorities which includes facts concerning a criminal offence cannot be a source of disciplinary responsibility and justify dismissal for just cause, except where the whistleblowing activity has occurred in the conscious absence of employer liability. Disciplinary responsibility therefore cannot be dismissed because a complaint is unfounded and criminal proceedings are defined by the judgment of absolution, as this is insufficient to prove that a complaint is slanderous.
The Supreme Court considered that the obligation of fidelity which is incumbent on employees cannot be extended to force them to abstain from reporting criminal activity that they believe the company in question has undertaken.
Another Supreme Court sentence (25759/17) stated that the dismissal of an employee who had denounced the employer's unlawful use of social security instruments was unlawful. The court confirmed that the employment tribunal's decision that the dismissal had been unlawful because the allegations had proven to be untrue was insufficient; rather, it had to be proven that the employee had acted to damage the company.
Parliament recently approved the so-called 'whistleblowing act', which covers the reporting of illicit activities in the public and private sectors by employees. The law consists of three articles which aim to protect employees. In particular, the protection of employees who report illicit activity or violations of an institution's organisational or management structure has been extended to the private sector.
The law provides for one or more reporting channels for employees who have become aware of criminal offences. These channels must ensure the employee's confidentiality. It has also been clarified that reports must be based on factual elements which are "precise and concordant".
Organisational models must provide for disciplinary penalties against persons who violate reporting measures. While there is an obligation to penalise unfounded accusations, the adoption of discriminatory measures against reporting subjects may be the subject of a complaint to the National Labour Authority. Further, the law establishes that the discriminatory dismissal of employees is prohibited.
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