Prime Minister, the Hon. Bruce Golding, has raised concerns about the provisions of the Whistleblower legislation, which places a duty on individuals, without investigative powers, to follow up on disclosures of misconduct by employees.
In his contribution in the House of Representatives to the debate on the Protected Disclosures Act (2010), also called the Whistleblower legislation, Mr. Golding on Tuesday pointed out that under section 18, every employer or other person to whom an employee is entitled to make a disclosure, must take appropriate steps to investigate, or ensure that the disclosure is investigated.
It also states that, in every case, the person receiving the disclosure must take steps, where the person determines that an investigation should be carried out, to cause an investigation of the improper conduct to be carried out.
"It is here that I think the bill is flawed it is one thing if you’re requiring the employer to whom disclosure is made to investigate it is one thing if you’re requiring the specified authority (such as) the Auditor General, Contractor General, Director of Public Prosecutions, to investigate having received a disclosure – but I think it is quite another thing if you have justification under the law, to go outside and make that disclosure to an external party –to the press (for example),” Mr. Golding said.
He also stated the Bill had gone too far to impose on the journalist (for example) a duty to investigate. He said it was not that they were free to investigate, the law imposed a duty on them to investigate.
Mr. Golding therefore suggested that section 18 be amended, to place no obligation on external parties to investigate. He said the provisions should be applicable only to disclosures made to an employer, a Minister or a public body appointed by a Minister, or to a prescribed person whose duties make him responsible for investigating a report of misconduct.
Mr. Golding also expressed dissatisfaction with an amendment from the Upper House, following deliberations by a Joint Select Committee to which the Jamaica Employers Federation (JEF) had made representation. As a result of the JEF’s input, an amendment was made which would make whistleblowing applicable to the private sector, only when it involves misconduct in relation to public funds.
He said that he had some concerns because, while the Bill focuses on strengthening institutional capacity to tackle corruption in public administration, it has a wider intention to declare that a person has a right, in whatever circumstance, to make disclosures about improper conduct, and in exercise of that right, is entitled to be protected.
"And that it should not be confined to those instances in which public funds are used," he told the House. He argued that perhaps the provision should speak to instances in which public interest is involved, as against public funds, which is restrictive.
Mr. Golding emphasised that the law would not dictate what would be done with the complaint, or interfere in the company’s operations, “all that the Bill would be saying is that, if an employee makes disclosures, he is entitled to be protected from victimization”.
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