The legislation relating to whistleblowing in the workplace can involve claims for labor harassment, crimes in the work place, corruption, non – fulfilment of regulations relating to outsourcing, hiring of foreign employees, the Health Committee responsible for supervising health and safety matters, amongst others.
Article 23 of the National Constitution, Article 24 of the Administrative Code and Law 1755, 2015 regulate the right of petition in respect of a general or particular interest and the right to obtain prompt and complete resolution. In accordance with this legislation, everybody has the right to present inquiries, complaints and to whistle blow in relation to any situation that has taken place inside or outside the workplace.
The Labor Code establishes in Article 58 No. 2 the duty of the employees in denouncing criminal offenses or the breach of labor contract or labor legal provisions before the competent authorities.
According to the legislation governing anti – corruption for Public Servants, tax auditors have to denounce within 6 months following any irregularity and all public servants have the duty of denouncing crimes and disciplinary offences and are responsible in case of any omission of such obligation.
Additionally, according to the opportunity principle as a mechanism through which individuals, such as employees, that have been indicted for committing a crime, may obtain an amnesty consisting of penalty reductions or even the overturning of a prosecution if they cooperate with prosecutors in whistleblowing other parties involved in the crime. Under this scenario, retaliation of a public servant against another public servant who has denounced illegal practices is a serious misconduct.
Colombian Criminal Procedure Code allows for the filing of anonymous criminal complaints. In this sense, employees can present criminal complaints in the workplace avoiding any possible concerns in relation to retaliation.
Considering the above, employees can whistle blow irregular conduct in the workplace before the competent authorities, such us criminal authorities, inside the company, Ministry of Labor, National Prosecutor between other competent authorities.
For this purpose, according to labor law, companies must have a Labor Environment Committee. This Committee receives and processes the complaints related to labor harassment conduct. It also provides recommendations to the Company and helps in resolving conflicts between the employees.
Companies can also have ethics policies, compliance departments and hotlines which establish the procedures and characteristics of a whistleblowing scheme relating to any topic in respect of the company such as corruption, harassment, anti-ethical conduct and crimes, amongst others. According to the anti – corruption legislation, all public entities must have a space on their main website for citizens to file complaints and allegations of corruption made by employees of the entity. In this sense the web page can be used by any person regardless of his/her position as an employee.
We are concerned about the fact that in some cases, employees prefer not to whistle blow within the company to avoid retaliation actions, such us losing their jobs or having conflicts with other employees. Also because there are companies that identify crimes or corruption in the workplace usually in the commercial area or tender area but prefer not to denounce the crime before the competent authorities, if the employee involved in the situation whistle blows on another employee and the complete situation inside the company.