Last week, the Knesset passed the third reading of an amendment to the 1997 law that affords protection to employees who have blown the whistle on corruption in their workplace. The amendment upgrades the level of protection granted to these employees from dismissal or a worsening of their conditions by the employer. Both the amendment and the original law apply only to the public sector.
The original law, primarily drafted by former Supreme Court Justice Haim Cohen, had a loophole that rendered it ineffective. The law forbade an employer from worsening the conditions of or dismissing an employee only in two situations: when the worker either complained about an act of corruption committed by a superior or fellow employee or helped another employee submit such a complaint. However, the law only marginally reduced the number of employees fired because they had exposed corruption or improprieties. Employees who petitioned the Labor Court against their employers for being unfairly treated in revenge for exposing acts of corruption had a hard time proving that their whistleblowing was the direct cause of the damage. In judicial hearings, employers claimed that their decision to fire the employees in question were unrelated to the complaints but based on other reasons. In most instances, employers have won their cases due to insufficient proof, and the whistleblowing employees were not reinstated.
The labor courts also tend to weigh the implications of rehiring the employee vis-a-vis the stability of labor relations in the organization. Coercing an employer to rehire an employee who had been dismissed because he complained about corruption might introduce tensions and instability to labor relations and even impair the organization's ability to achieve its objectives.
The new amendment - which aims to protect employees who have lost their jobs or whose employment conditions have deteriorated as a result of exposing corruption in the organization - may close the loophole. The amendment moves the burden of proof from the employee to the employer, who must prove to the court that it did not dismiss the worker because he exposed corruption in the organization. Legally speaking, it would be difficult for an employer find arguments that might explain why he cannot rehire the employee.
Nevertheless, the amendment is far from perfect. It determines that the employer cannot dismiss an employee who exposed corruption in the organization for six months from the date the complaint was made. From seventh months and on, the employer or direct superior is permitted to initiate dismissal proceedings against the employee. The current amendment's initiator, the Ogen (anchor) association, also supports another proposed law that passed its preliminary reading and is now in the Constitution, Law and Justice Committee. The law, based on American legislation, calls for an employee who complains about corruption or embezzlement in his place of work to be compensated. According to the proposed law, drafted by Ogen's Avi Gan-Bar, the whistleblower would be awarded 30 percent of the amount recovered by the state as a result of the embezzlement's disclosure.
Committee chairman MK Ophir Pines (Labor) opposes the law. In a first hearing held by the committee on the matter, Pines said he fears that the financial incentive for exposing irregularities in the workplace would encourage informing and settling of accounts among employees. Other committee members supported Pines' position.
Detailed below are a few of many instances of employees dismissed under these circumstances:
l Etti Arbiv, a quality-control inspector, exposed acts of corruption in 1993 related to the growing of organic produce in Gush Katif. Her complaints were verified in an internal Health Ministry inquiry and in a subsequent State Comptroller report.
Arbiv lost her job with the Agriculture Ministry. She has suffered financially and socially. For instance, the rabbi of her settlement issued a writ of excommunication against Arbiv and her family. In February 2001, Arbiv was rehired but lost her job again four months later due to alleged budgetary cutbacks (although another worker, trained by Arbiv, continues to work there), and she cannot receive unemployment benefits. The police and the state comptroller's office have not responded.
l In 1997, Meshulam Daar exposed corruption and forgeries in the Rabbinical Court in Tel Aviv. With a video camera, he documented court employees punching attendance cards for other employees, some of whom had not come to work. A few months later, Daar was forced to resign. He explained he could not endure the unfair treatment displayed by senior court employees toward him. The affair was investigated by the police, but the state prosecutor recommended not to file criminal charges, since the allegation that employees had their cards punched when they did not show up at work could not be proven. Nevertheless, the Civil Service Commission has taken disciplinary steps against the employees.
Three ministry staffers have since left the civil service, and therefore, no measures have been taken against them; four were reprimanded; complaints were brought in disciplinary court against two others, but were dismissed due to the statute of limitations. Daar's allegations were confirmed, but he lost his job.
l Shlomo Tamir, a Lod Municipality guard, exposed false reports supposedly filed by his superiors to the police regarding the number of guards at the city's schools. In 1996, Tamir informed senior city officials. When they failed to respond, he complained to the police and was fired, because he had passed municipality documents to outside sources - the police. When he petitioned the Labor Court to have him reinstated, the court affirmed the dismissal, but awarded him compensation.
In 1992, the Knesset passed the Integrity Encouragement Law at the initiative of MK Ran Cohen (Meretz). The law calls for the presentation of a certificate of commendation by the president to anyone who discloses corruption in his workplace. The commendation does not include any monetary sum or reward. However, the law has never been implemented. Former president Ezer Weizman publicly declared his his intention to refuse to obey it. Weizman told Cohen that he considered whistleblowers to be informers. Incumbent president Moshe Katzav says he is willing to implement the law and issue commendations to those who expose corruption at their place of work.