The question of what constitutes whistleblowing arises often. Whistleblowing can be defined as an act by an employee to provide their employer with information regarding misconduct committed by one of their colleagues and/or to raise a concern about any acts of wrongdoing within the workplace. Common examples include fraud and harassment-related offences.
Most employees often turn a blind eye in fear of being charged for misconduct themselves. However, employers should note that such disclosures are protected in legislation, and therefore employers cannot take disciplinary action against their employee who courageously “blew the whistle”. Quite the contrary, such an employee, will be regarded as having acted in good faith and in the company’s best interest by being forthcoming with their information.
The Protected Disclosures Act 26 of 2000 was specifically designed by our legislatures to protect whistleblowing employees who find themselves in both the public and private sectors. The legislation provides procedures to protect such employees and specifically states that no employee may be subjected to any occupational detriment by their employer on account, or partly on account, of having made such a protected disclosure. An occupational detriment includes any act by an employer such as being dismissed, suspended, demoted, transferred against the employee’s will, harassed or intimidated, refused a reference or being provided with an adverse reference because of the employee’s disclosure.
Besides The Protected Disclosures Act, the Labour Relations Act 66 of 1995 also protect whistleblowing employees. Section 186(2)(d) stipulates that it will constitute an unfair labour practice if any act or omission arises between an employer and employee because of occupational detriment and section 187(1)(h) stipulates that a dismissal based on occupational detriment will be regarded as automatically unfair dismissal.
However, the protection extended to whistleblowers by the Act is not unconditional, and not all disclosures are protected. One must meet specific requirements in order to enjoy protection, and employees need to understand what qualifies as a protected disclosure and when they can claim that they have suffered an occupational detriment.
The irregularities covered by the Protected Disclosures Act include the following:
- criminal offences being committed or likely to be committed;
- failure of any person to comply with certain legal obligations;
- miscarriages of justice;
- endangering the health or safety of individuals;
- damage to the environment; and
- unfair discrimination.
Particular importance for employers are two new administrative obligations created by the Amendment Act, namely that (1) employers must plan and document internal whistleblowing procedures and must bring this to the attention of all its employees; and (2) employers are required to respond in writing to a disclosure within 21 days and keep the employee/worker informed of steps being taken with investigating the matter.
In Grieve vs Denel (Pty) Ltd (2003) 4 BLLR 366 (LC) an employee was suspended and notified of a disciplinary enquiry after his general manager became aware that the employee was about to disclose information regarding his acts of misconduct to the board of directors. The Labour Court found sufficient evidence to prove the employee’s intended disclosure had some substance to the matter at hand and subsequently found that the employee’s looming disciplinary action falls under the definition of an occupational detriment. As a result, the employer was prohibited from taking further disciplinary action against the employee.
Another case was that of CWU v Mobile Telephone Networks (Pty) Ltd (2003) BLLR 741 (LC). Here, the Court agreed with the judgement in the Grieve/Denel matter that the Protected Disclosures Act seeks to protect whistleblowers. The Court did, however, add that this protection is not unconditional, in that to be a protected disclosure, the disclosure had to meet the requirements in the Act. The Court said that an employee who discloses 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.
From the above it is evident that employers should conduct a thorough investigation when any act of misconduct occurs. When the primary evidence was derived from an employee who made a protected disclosure, extra care should be applied to protect such an employee and not pursue any disciplinary action against the employee. Employers are encouraged to implement a policy or practice in the workplace regarding whistleblowing to promote acts of good faith by employees who are willing to disclose any relevant information pertaining to any acts of wrongdoing.
For more information on this topic or to get further guidance on how to address similar incidents in your workplace, contact your SEESA Labour Legal Advisor for more assistance. Alternatively, leave your name on our website, and we will contact you.
About the author:
Anerike Schutte joined SEESA in 2015 as a Labour Legal Advisor after being admitted as an attorney. She obtained her LLB degree in 2012.
References:
- Labour Relations Act 66 of 1995 (as amended)
- Protected Disclosures Act 26 of 2000
- Ivan Israelstam – Don’t Victimise whistle blowers https://www.labourlawadvice.co.za/articles/dont-victimise-whistle-blowers/
- Whistle blowing https://www.gov.za/anti-corruption/whistle-blowing