South Africa: Blowing The Lid Off The 'Whistle-Blower Act'

The Protected Disclosure's Act¹ (hereinafter referred to as "the Act") is legislation which was enacted for purposes of affording protection to the proverbial whistleblowers in the workplace. The main policy consideration underlying the Act is to foster a culture of whistle blowing in the work environment in order to combat the prevalent nature of both employers and employees to simply overlook certain improprieties. Section 3 of the Act provides that "no employee may be subject to any occupational detriment by his or her employer on account (in whole or in part) of having made a protected disclosure." However, there are various requirements that have to be complied with before an employee's disclosure can be classified as falling within the ambit of protection provided for in the Act.

The purpose of this article is to explore the exact scope of the Act in order to draw attention to both employers and employees about the actual protection which is afforded in terms of the Act.

The object of the Act

The object of the Act is to protect employees from being subjected to occupational detriments as a result of making a "protected disclosure". However it is at this juncture that employees need to be cognisant of the hurdles that they need to overcome before they can claim that they have suffered an occupational detriment. As a starting point, employees need to be aware of what exactly constitutes a disclosure in terms of the Act, and whether what they believe to be a protected disclosure does in fact enjoy the benefit of protection afforded by the Act.

What is a disclosure for purposes of the Act?

A disclosure, in terms of the Act means the disclosure of information regarding any conduct of an employer, or the an employee of that employer, made by an employee who has reason to believe that the information concerned shows or tends to show one of the following:²

• 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 to 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 and 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 the Promotion of Equality and Prevention of Unfair Discrimination Act³; or
• That any matter referred to above has been, is being or is likely to be deliberately concealed.

It is noteworthy that not every disclosure that an employee makes will constitute a protected disclosure. There are fundamental requirements which must be met in order to enjoy protection. The overarching requirement is that the disclosure must be made in good faith, in other words the disclosure cannot be made for the purposes of personal gain. In essence therefore, if the disclosure is made in bad faith, then the disclosure made will not enjoy any protection.

There are different ways in which protected disclosures can be made, however, for purposes of this article, only two are worth mentioning, namely a protected disclosure to the employer (governed by Section 6 of the Act) and a general protected disclosure (governed by Section 9 of the Act). If a disclosure is made to an employer, the requirements of section 6 of the Act need to be complied with before protection can be afforded. Section 6 requires that the disclosure must be made in good faith and must be in terms of a procedure laid down by the employer. If there is no procedure, then the disclosure must be made directly to the employer concerned. A disclosure made in terms of Section 9 of the Act must be a disclosure made in good faith by an employee who reasonably believes that the information disclosed, and any allegation contained in it, is substantially true; and who does not make the disclosure for purposes of personal gain. In these circumstances, it must be apparent that the disclosure was reasonably made by the employer.

In the case of Communication Worker's Union and Another v Mobile Telephone Networks (Pty) Ltd⁴, the employee transmitted communication via e-mail wherein he alleged that the employer was engaging in preferential treatment in favour of a certain employment agency to the detriment of other participating agencies. The communication was disseminated to employees and other executive persons in the company. Subsequent to the transmission of the e-mail, the employee was notified of pending disciplinary action against him.

The crux of the issue which had to be determined by the Court was whether the employee's communications did in fact constitute a protected disclosure as defined in the Act. The Court held that the employee's disclosures were merely suspicions or a subjectively held opinion and they did not fall within the ambit of a protected disclosure. The Court further held that there ought to be some nexus between the disclosure and the detriment. However this is not to say that an employee would be entitled to a remedy only if the detriment applied by the employer is applied expressly for the making of a disclosure. Such a requirement would be untenable and would not be able to muster the scrutiny that would be occasioned by it.

The second hurdle is that an employee needs to demonstrate the "occupational detriment" suffered as a result of making a protected disclosure.

What is an occupational detriment for purposes of the Act?

An occupational detriment in relation to the working environment of an employee means:

• Being subjected to any disciplinary action;
• Being dismissed, suspended, demoted, harassed or intimidated;
• Being transferred against his/her own will;
• Being refused transfer or promotion;
• Being subjected to a term or condition of employment or retirement which is altered or kept altered to his or her disadvantage;
• Being refused a reference, or being provided with an adverse reference, from his or her employer;
• Being denied appointment to any employment, profession or office;
• Being threatened with any of the actions referred to above; or
• Being otherwise adversely affected in respect of his or her employment, profession or office, including employment opportunities and work security.

It is clear from the definition of what an occupational detriment is that the employer must have engaged in an act in an effort to subject the employee to an occupational detriment as envisaged in the Act.

The Regulations⁵ provide that "If an employee is dismissed as a result of making a disclosure in terms of the Protected Disclosures Act, 2000, that dismissal is deemed to be an 'automatically unfair dismissal' for purposes of the Labour Relations Act, 1995.

All other forms of occupational detriment referred to above, are deemed to be 'unfair labour practices' as contemplated in the Labour Relations Act, 1995.

Conclusion

It is clear that the protection extended to employees by the Act is not unconditional. The Act sets out parameters of what constitutes a protected disclosure as well as the manner of permissible disclosures by workers. One can glean from the definition of "disclosure" in the Act that the kind of disclosure contemplated is a disclosure of information that either discloses or tends to disclose forms of criminal or other misconduct/ impropriety. Mere suspicions or subjectively held opinions will not receive the benefit of protection afforded by the Act. Therefore employees should weigh what they consider to be a protected disclosure against what is actually a protected disclosure as defined in the Act before taking any further action. There are stringent definitions and requirements laid out in the Act therefore it is advisable for employees to rather seek objective legal advice before embarking on a rampage which will be detrimental to them and their employment.

Footnotes

1. Act 26 of 2000.

2. Section 1 of Act 26 of 2000

3. Act 4 of 2000

4. (2003) (JS 803/03) ZALC 59.

5. Practical Guidelines for Employees,The Protected Disclosure Act, 2000.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.