Permissible criticism of an employer by a whistle-blower,499189.html

A whistle-blower (literally a ‘whistle blowing man’) is a person who publicises the activities of an employer or organisation with which the whistle-blower is professionally connected, opposing to law or ethics.

The whistle-blower informs the public about violations of law, such as corruption, embezzlement or ill-treatment of employees. A frequent effect of such reports is the whistle-blower’s problems in his work environment, consisting of harassment or humiliation by superiors and colleagues. Such behaviours may bear signs of mobbing.

Currently applicable law in Poland does not contain a separate regulation that would ensure effective protection of whistle-blowers, or indicate in what manner and to whom whistle-blowers can turn with information about irregularities or events detrimental to the common good, which they observed in the course of their professional duties. The term ‘whistle-blower’ has already entered the legal language in Poland – it is used in the Polish language version of Directive 2019/1937 of 23.10.2019 on the protection of persons who report a breach of Union law (OJ L 305, 26.11.2019, p. 17). The directive extensively regulates whistle-blower protection in public and private law. Member States, including Poland, should implement most of the provisions necessary to comply with it by December 17, 2021.

As a rule, the employer can control the employee only in the sphere of his professional activity, and the content published on employee accounts in social media is private. Entries directly related to the workplace fall within the concept of permitted public criticism of the employer, if they do not contain, for example, offensive, personalized and false information, aimed at exposing the employer’s good name or disclosing the trade secret. It should be remembered, however, that the Polish Constitution guarantees freedom of speech and the right of citizens to obtain and disseminate information.

The midwife informing on her private profile in social media about the hospital problems with the availability of means of protection against infection COVID-19, signalled irregularities in the public interest. It can be said that not only did she not violate the right to criticise the employer, but she acted in the interest of other employees and patients.It should be emphasised that in the current situation, reliable communication to the public about the state of preparation and supplying hospitals with the necessary means is extremely important due to the citizens’ right to information guaranteed in art. 61 of the Polish Constitution. From the point of view of constitutional standards, limiting the statements of healthcare professionals about the real conditions in which they perform work may constitute a violation of the freedom of speech and the right to obtain and disseminate information resulting from art. 54 of the Polish Constitution.

According to the jurisprudence of the Supreme Court, an employee has the right to allow public criticism of his/her superior and employer, i.e. to signal irregularities in the functioning of his/her workplace. Of course, this right does not justify exceeding the limits of permitted criticism, which would lead to a violation of his employee’s obligations, consisting in particular in taking care of the good of the workplace and keeping secret information, the disclosure of which could expose the employer to harm. The obligation of loyalty and not infringing the employer’s interests results from art. 100 § 1 point 4 of the Labour Code, and the obligation to observe the company’s rules of social coexistence is imposed by art. 100 § 2 point 6 of the Labour Code. 

The above means that an employee may not hastily, in a subjective manner, formulate negative and judgemental opinions from their private point of view regarding the employer or their representatives, for the sole purpose of causing conflict or disorganization of work. Specific evaluative statements or statements aimed at harming an employer may exceed the limits of social coexistence. 

The Supreme Court has stated that ‘permissible  criticism’ must be substantive, reliable and adequate to specific factual circumstances and  appropriate in form. The basic feature of permitted criticism is the employee’s “good faith”, i.e. their  subjective belief that they  base their criticism on truthful facts (while exercising due diligence in verifying them) and act in the justified interest of the employer. On the other hand, criticism should take into account the principles of protection of personal rights (indicated in Article 23 and 24 of the Polish Civil Code), because negative assessments cannot lead directly to the violation of the employer’s personal rights, and the violation of these rights can only occur exceptionally as a result of a value  statement, if it is not based on a real, evaluated  event (see the Supreme Court’s judgment of May 10, 2018, II PK 74/17; Supreme Court judgment of August 28, 2013, I PK 48/13; Supreme Court judgment of September 7, 2000, I PKN 11/00).

In summary, critical opinions of employees may  even positively affect the functioning of an employer’s enterprise.It is important, however, that such  criticism should be within the limits permitted by law – it should be factual and specific, consistent with the facts, and also carried out in the right form. The midwife in the discussed case had the right to be open and critical in matters concerning the organisation of work. There are no grounds to believe that her statements as an employee exceeded the appropriate cultural form and that they were not based  on legitimate grounds.

The midwife’s statements did not constitute an abuse of the  right to criticise the employer, and  only in the event of a serious breach of employee obligations, i.e. due to wilful misconduct or gross negligence, the employer has the right to terminate the employment contract without notice, i.e. to a disciplinary dismissal.

The midwife’s entry in the discussed case was posted on her private Facebook profile. It concerned the working conditions of medical staff and the state of preparation of the hospital in the conditions of an  epidemic. The midwife’s statement was made  within the limits of legal order and permitted public criticism and referred to an important public interest. By posting on the Internet, the midwife had only good intentions and exercised her right to signal irregularities in the public interest. It should be emphasized that the employer’s obligation resulting from art. 94 of the Polish Labour Code is to provide safe and hygienic conditions of work.

Therefore, the midwife’s statement cannot be considered as a gross violation of employee obligations constituting the basis for the termination of the employment relationship by the employer without notice due to the employee’s fault, pursuant to Art. 52 § 1 of the Labour Code. To meet this condition, a significant degree of employee’s fault (intentional fault or gross negligence) is necessary, and the existence of such a  degree of fault is determined on the basis of all circumstances related to the employee’s behaviour. The jurisprudence of the Supreme Court regarding the determination of a significant degree of employee’s guilt as a condition for terminating an employment contract with them  without notice is very strict.

In accordance with art. 56 of the Labour Code, an employee with whom the employment contract was terminated without notice, in violation of the provisions on the termination of employment contracts in this mode, is entitled to reinstatement to work under previous conditions or for compensation. The labour court decides on reinstatement or compensation. An employee who took up work as a result of reinstatement to work, is entitled to remuneration for remaining unemployed, but not more than for 3 months and not less than for 1 month. The compensation referred to in art. 56, is payable in the amount of remuneration for the notice period. In the event of termination of a fixed-term employment contract, compensation shall be payable in the amount of remuneration for the time for which the contract was to last, but not more than for the period of notice.