The Protection of Whistle Blowers

Article provided by Nalane Manaka Attorneys

It is not often that we hear of an employee reporting misconduct in the workplace to his employer. This is because the employee is not certain whether to report it or not, often for fear of reprisal by his employer. In order to address this problem and to ensure that the employee is protected from any detriment, parliament enacted the Protected Disclosures Act, No 26 of 2000 ("the PDA"). The PDA provides amongst its objects, the protection of an employee, whether in the private or public sector, from being subjected to what is called an occupational detriment. The PDA defines an occupational detriment as being subjected to disciplinary action; being dismissed, suspended, demoted, harassed or intimidated or being transferred against your will because of the disclosure.

The question is what constitutes a protected disclosure? A protected disclosure is defined in the PDA as disclosure made in good faith "in accordance with any procedure prescribed, or authorised by the employee's employer for reporting the impropriety concerned. Where there are no procedures, for reporting, the PDA provides that the disclosure should be made to the employer.

       
Recently, the Labour Court was called upon to pronounce on the provisions of the PDA in the case of Grieve v Denel [2003] 4 BLLR366 (LC). In this case the employee, who was employed as a Safety and Security Manager at a division of Denel was suspended with a view towards conducting a disciplinary hearing against him. This was after he had forwarded a report of alleged misconduct by a senior director at that division. The employee had been spokesperson for a group within the division which had compiled information relating to improper management and misconduct by their general manager. This information had then been handed to the employee's immediate superior who forwarded it to the board of directors. The idea behind the information gathering had been to try and have the general manager removed from his position. Disciplinary proceedings were then instituted against the employee.

           
Before his disciplinary hearing, the employee made an urgent application to the Court to stop the employer from subjecting him to the disciplinary action. The employee brought the case on grounds that alleging that he was entitled to protection in terms of the Protected Disclosures Act.

The Court considered the Protected Disclosures Act, analysing the provisions relating to protected disclosures as well as occupational detriment. The Court concluded that the disciplinary hearing was disciplinary action as contemplated by the Act and therefore constituted an occupational detriment. It accordingly stopped the employer from instituting disciplinary proceedings.

Another case was that of CWU v Mobile Telephone Networks (Pty) Ltd [2003] BLLR 741 (LC). In this case the Court agreed with the judgement in the Grieve / Denel matter that the PDA seeks to protect whistleblowers. The Court did however add that this protection is not unconditional, in that in order to be a protected disclosure the disclosure had to meet the requirements provided for in the Act. The Court said that an employee who makes a disclosure in order to embarrass or harass an employer could not be a disclosure made in good faith. In short a disclosure which is not based on fact cannot be protected by the Courts. In short a disclosure which is not based on fact cannot be protected by the Courts.

In terms of the above it is clear that the PDA is an attempt to encourage employees who are suspicious of any untoward activity in the workplace and who can prove it to disclose this to the employer. Even section 191(13) of Labour Relations Act provides in that in the event that an employee is subjected to an occupational detriment the employee can refer the matter to the Labour Court for adjudication.

The idea then is that in the event that an employee makes a protected disclosure in the workplace, he should not, in terms of this Act, have to face disciplinary proceedings or face dismissal or suspension as a result of having made a protected disclosure. It is important to point out that in order for an employee to enjoy the protection of this Act the disclosure must not be a mere rumour or an unfounded allegation.