Often employees find themselves in positions where they are too afraid to report misconduct or disclose information relating to suspect or alleged criminal activity or other irregular conduct. They fear reprisal or possible dismissal, especially when the act involving the employer and/or senior management.
Section 187(1)(h) of the Labour Relations Act (LRA) 66 of 1995 lists dismissal of an employee for making a disclosure protected by the Protected Disclosures Act 26 of 2000 as an automatically unfair dismissal.
The Protected Disclosures Act (the PDA) was enacted by parliament to protect employees from any detriment in situations as above. However, for an employee to qualify for the protection of this Act, the employee who makes the disclosure must believe that the information is true and made in good faith. The employee will also have to prove that he/she had reason to believe that the employer was committing or about to commit a criminal act or other irregular conduct, such as evading a legal obligation, perpetrating unfair discrimination or was endangering the health and safety of any person. The disclosure by an employee must not be for reward or gain. It should also not be mere rumours or unfounded allegations.
A case study
In the case of Grieve v Denel  4 BLLR366 (LC) an employee was suspended pending a disciplinary hearing after he had forwarded a report of alleged misconduct by a senior director at the division of Denel. The employee made an urgent application to the Court to stop the employer from instituting action against him on grounds that he was protected in terms of the PDA. The Court concluded that the disciplinary action was constituted as an occupational detriment and the employer was stopped from instituting disciplinary proceedings. The Court in CWU v Mobile Telephone Networks (Pty) Ltd  BLLR741 (LC) agreed with this judgement, however, added that the protection under the PDA is not unconditional. The disclosure made by an employee in order to embarrass or harass an employer could not be a disclosure made in good faith. If the disclosure is not based on fact, the Courts cannot protect it.
It is safe to say that the PDA is there to encourage employees to come forth and report suspicious acts or activities in the workplace. Any employee whom is faced with a detriment may refer the matter to the Labour Court as stipulated in Section 191(13) of the Labour Relations Act.
It would be wise for all employers to implement a policy dealing with this matter and inform them of their rights and the procedures as per the PDA.
ABOUT THE AUTHOR
Yolande Iversen obtained her LLB Law degree from the Nelson Mandela Metropolitan University in 2011. In August of 2011 she she joined SEESA Labour as a legal assistant. In September of 2014, she was promoted to a SEESA Labour Legal Advisor.