PROTECTION OF WHISTLEBLOWERS WITHIN COMPANIES
Employees often find themselves in situations where they become privy to certain information in the workplace, albeit inadvertently or not. The situation then arises where the employee is faced with the decision of whether to report the matter to the relevant authority within the company or turn a blind eye in an attempt to avoid the possible repercussions following the disclosure. The Protected Disclosures Act 26 of 2000 (hereinafter referred to as the “PDA”) has been enacted for purposes of regulating situations like these and affording the employee with the necessary protection upon making the disclosure.
The main purpose of the PDA is to create a culture that will facilitate the disclosure of information by employees relating to criminal and other irregular conduct in the workplace in a responsible manner. It does so by providing comprehensive statutory guidelines for the disclosure of such information and protection against any reprisals as a result of such disclosures, thereby promoting the eradication of criminal and other irregular conduct.
Yet, not every disclosure will be protected in terms of the PDA, and employees failing to follow the prescribed statutory requirements and procedures may not be entitled to the protection offered by the PDA, thereby rendering themselves open to occupational detriment as referred to in the PDA. It is imperative that companies have the necessary policies in place to ensure their employees are aware of the requirements that need to be met.
However, should an employee be entitled to the protection afforded under the PDA and has suffered occupational detriment by the employer in breach of the PDA, his or her remedy would be to approach the Labour Court or the Commission for Conciliation, Mediation and Arbitration. The PDA provides for financial compensation and enables such employee to obtain a transfer on the same terms and conditions of employment prior to the occupational detriment.
In order to qualify for protection in terms of the PDA, the disclosure made by the employee must be regarding any conduct of an employee or the employer, to the extent that:
- A criminal offence has been committed, is being committed or is likely to be committed;
- An individual has failed, is failing or is likely to fail to comply with any legal obligation imposed on them;
- A miscarriage of justice has occurred, is occurring or is likely to occur;
- The health or safety of an individual has been or is likely to be endangered;
- The environment has been, is being, or is likely to be endangered;
- Unfair discrimination as contemplated in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000; or
- Any matter related to the above, has been or is likely to be deliberately concealed.
Secondly, the PDA requires the employee making the disclosure to do so in good faith as opposed to being motivated by improper motives such as personal gain.
Thirdly, the employee is required to follow the prescribed procedure in terms of the PDA when making the disclosure and depending on who the disclosure is made to, there are certain requirements to be met in each case. For purposes of this article, the focus will be on making disclosures to the employer, alternatively a legal representative.
Disclosures made to a legal representative are common as employees may first wish to obtain legal advice regarding the making of the disclosure in terms of the PDA. The requirements in these instances include that the person being consulted by the employee must be a legal representative whose occupation must involve the giving of legal advice and that the information must be given for the purpose of obtaining legal advice.
Disclosures made to the employee’s employer must be made in good faith and without any motive to gain any personal advantages from making the disclosure. An employer may elect to lay down a procedure in terms of which disclosures must be made, provided that the provisions of which are not in contravention to anything in the PDA.
As illustrated in the matter of Chowan v Associated Motor Holdings (Pty) Ltd and Others 2018 (4) SA 145 (GJ), it’s important to note that a disclosure made in terms of the PDA need not be factually correct, but rather that the employee making the disclosure must reasonably believe the content thereof to be true. A belief can still be reasonable even if the information turns out to be inaccurate, as was held in Lou-Anndree John v Afrox Oxygen Limited (JA90/15) .
It is clear from the above that the legislator, as well as the courts, encourage employees to make use of the rights conferred in terms of the PDA. From a company perspective, it’s important that the employer has the necessary policies and procedures in place and provides the required training to its employees for purposes of ensuring due compliance with the PDA and entitlement to the protection offered in terms thereof.
Invictus Group is able to assist companies with the necessary advice so that all procedures and legalities are complied with. Contact Invictus Group on 0861 737 263 for us to assist you.