Businesses can only benefit from having a proper Protected Disclosures and or Whistleblowing Policy in place. There have been instances where no such policy existed and disclosures were made to the media and the employer only found out when confronted by the media. If a business implemented a Protected Disclosures Policy, then they have taken the first step to prevent possible exposure to embarrassing media coverage.
The concept of a Protected Disclosure is also referred to as a Whistleblower and/or a person who is a Whistleblower. This must be distinguished from someone acting on an instruction in the scope of his/her duties and an employee making a protected disclosure against an employer. This was the case in Mashaba v Telkom SA (JR375/12) 2018 ZALCJHB3; 2018 39ILJ 1067 LC the employee in the said case was a shop steward and sent a dossier about Telkom to various members of his Union as well as COSATU on instruction from his Union. As such he acted in the scope of a shop steward and this was not seen as a Protected Disclosure nor did he claim it to be a protected disclosure.
The Protected Disclosures Act 2000 as amended in terms of Act 5 of 2017 states the following:
What is a Disclosure?
‘Disclosure’ means any disclosure of information regarding any conduct of an employer, or of an employee or of a worker of that employer, made by any employee or worker who has reason to believe that the information concerned shows or tends to show one or more of the following:
- That a criminal offence has been committed, is being committed or is likely to be committed;
- That a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject;
- That a miscarriage of justice has occurred, is occurring or is likely to occur; that the health or safety of an individual has been, is being or is likely to be endangered;
- That the environment has been, is being or is likely to be damaged;
- Unfair discrimination as contemplated in Chapter II of the Employment Equity Act, 1998 (Act No. 55 of 1998), or the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000) or;
- That any matter related to the above has been or is likely to be deliberately concealed.
Who may make a Protected Disclosure?
Employee means:
- Any person, excluding an independent contractor, who works or worked for another person or the state, and who receives or received, or is entitled to receive, any remuneration; and
- Any other person who in any manner assists or assisted in carrying on or conducting or conducted the business of an employer may make a Protected Disclosure”.
Worker means:
- Any person who works or worked for another person or for the state; or
- Any other person who in any manner assists or assisted in carrying on or conducting or conducted the business of an employer or client, as an independent contractor, consultant, agent; or
- Any person who renders services to a client while being employed by a temporary employment service’’.
Duty to inform Employee or Worker
Any person or body to whom a protected disclosure has been made in terms of section 6,7 or 8 of the Protected Disclosures Act must as soon as reasonably possible or within 21 days after the protected disclosure has been made:
Decide whether to investigate the matter or decide not to or refer the disclosure to another person or body if that disclosure could be investigated by that other person or body. The person or body to whom the disclosure was made must respond to the employee or worker in writing about what it is going to do about the disclosure.
In terms of National Institute for the Humanities and Social Sciences (NIHSS) v Lephoto and another (JA 36/2018) (2019) ZALAC 65; (2020) 3 BLLR 257 LAC
The specific case occurred before the enactment of the current amendments to the Protected Disclosures Act 5 of 2017.
The Respondent in the case was the CFO Mr Lephoto who alleged that he made 2 protected disclosures stating the following:
- The CEO has a questionable relationship with Mr Slingsby Mda of Deloitte Co suiting, a firm of auditors contracted to provide fund management services to the NIHSS.
- The CEO is undermining the rule of law by disregarding her legal obligations relating to Supply Chain management of the NIHSS.
The Humanities and Social Sciences (NIHSS) had a Protected Disclosure Policy in place. The Chairperson of the Boards Human Resources Committee asked for proof of the allegations and clarity on what the CFO Mr Lephoto meant in the 2 disclosures. Mr Charles Nupen, an Independent investigator, was appointed to investigate the allegations as well as the allegations the CEO made against the Mr Lephoto. The investigator found no evidence into the allegations made against the CEO by Mr Lephoto and further found that the trust relationship had broken down irreparably between the Mr Lephoto and the CEO.
The court held that the first question to be answered in the affirmative is whether there was a protected disclosure as defined in the Protected Disclosures Act to justify that a matter is regarded as a protected disclosure.
“The PDA is an important piece of legislation and is part of the overall framework which ensures that the exercise of both public and private power should be conducted in a transparent and accountable way. It seeks to create a climate in which employees, whether in the private and the public sector, can disclose information regarding unlawful and irregular conduct by employers or other employees in the employ of the employer in a manner which will not result in any occupational detriment to a person who commendably considers that the organisation, in which he or she works, should operate legally and in a meticulously regular fashion. However, the PDA was not enacted to encourage employees, whose own conduct renders them liable to dismissal, to exploit this legislation in a desperate attempt to fend off the inevitable consequences of their actions or performance. That the PDA should be interpreted generously to vindicate its purpose is one thing, but in a case such as the present, where the facts are overwhelmingly in support of the conclusion that its provisions were abused, the court should have no truck with an attempt to invoke its protection.”
The Protected Disclosures Act further places an obligation on employers to have a policy in place to advise employees what to do when wanting to make a Protected Disclosure.
For more information regarding the Protected Disclosure Act, please contact your nearest SEESA Office.
About the Author:
Rezonia is an Admitted Attorney and started her career at SEESA in 2010 as a Labour Legal Advisor.
Resources: Protected Disclosures Act 2000 as amended in terms of Act 5 of 2017; Humanities and Social Sciences (NIHSS) v Lephoto and another (JA 36/2018) (2019) ZALAC 65; (2020) 3 BLLR 257 LAC; Mashaba v Telkom SA (JR375/12