Whistle-blowing Act | Anti-Corruption | Protected Disclosures Act | Confidentiality clauses

GUIDE TO THE WHISTLE-BLOWING ACT

Section 2

UNDERSTANDING THE ACT

In South Africa the Protected Disclosures Act (no 26 of 2000) makes provision for procedures in terms of which employees in both the public and private sector who disclose information of unlawful or corrupt conduct by their employers or fellow employees, are protected from occupational detriment.

This law is to encourage honest employees to raise their concerns and report wrongdoing within the workplace without fear. This law should be welcomed as a crucial corporate governance tool to promote safe, accountable and responsive work environments.

The South African law draws heavily on the UK’s Public Interest Disclosure Act. This Act was introduced following a number of high-profile disasters and scandals which claimed hundreds of lives. The public inquiries, which were established to uncover the facts behind these catastrophes, showed time and again that such incidents could and should have been prevented. People who worked there had known about the dangers before any damage was done, but had:

  • been too scared to sound the alarm
  • spoken to the wrong people, or
  • raised the concern, only to be ignored.

The Protected Disclosures Act 2000

The Protected Disclosures Act sets out a clear and simple framework to promote responsible whistle-blowing by:

  • Reassuring workers that silence is not the only safe option
  • providing strong protection for workers who raise concerns internally
  • reinforcing and protecting the right to report concerns to public protectionagencies such as the Public Protector and Auditor-General, and
  • protecting more general disclosures provided that there is a valid reason for going wider and that the particular disclosure is a reasonable one.

The conceptual core

At its heart, the Protected Disclosures Act contains a simple idea: that it is in the common interest of both the employer and the (responsible, potential whistle-blower) employee to “blow the whistle” internally - within the department - rather than externally, to, for example, the media. Once a disclosure is made externally the stakes are much, much higher - for both the employer and the employee. For the employer it may result in damaging publicity, whether warranted or not. For the employee, it is much more likely that the employer will react negatively to the disclosure, with adverse consequences for the employee and his or her future work prospects.

Protected disclosures

A disclosure is a “protected disclosure” under the Protected Disclosures Act if:

  • the disclosure contains information about “impropriety” and
  • the disclosure has been made to the right person, according to the scheme established by the Act

(Refer to “The Four Doors to Legal Protection”).

Potential cost to employers

If a disclosure is protected it means that any “occupational detriment” that the employee who made the disclosure subsequently suffers as a result of the disclosure will attract a legal remedy. “Occupational detriment” is very widely defined by the Protected Disclosures Act and includes harassment, dismissal, transfer against the will of the employee, non-promotion, a denial of appointment, or “otherwise adversely affected”.

People who are victimised in breach of the Act, whether they are dismissed or not, can refer a dispute to the Commission for Conciliation, Mediation and Arbitration for conciliation and thereafter to the Labour Court. People who are dismissed for making a protected disclosure can claim either compensation, up to a maximum amount of two years salary, or reinstatement. People who are not dismissed but who are disadvantaged in some other way as a result of making a protected disclosure can claim compensation or ask the court for any other appropriate order.

"Impropriety"

The Protected Disclosures Act applies to people at work raising concerns about crime, failure to comply with any legal duty (including negligence, breach of contract, breach of administrative law), miscarriage of justice, danger to health and safety, damage to the environment, discrimination and the deliberate cover-up of any of these. It applies to concerns about past, present and future malpractice.

The scheme created by the Protected Disclosures Act can be likened to a person in a room faced by several exit doors. If you choose the right door, you leave the room with the special protections provided by the Protected Disclosures Act. If you do not choose the right door, you do not have any special protections, but must rely on ordinary labour law, criminal law, etc. to protect your rights if anything happens to you as a result of blowing the whistle.

The Four Doors to Legal Protection

Confidentiality clauses

Confidentiality clauses in workers’ contracts and severance agreements are ineffective insofar as they conflict with the Act’s protection.

You can make a protected disclosure to one of the following people provided you meet the requirements as set out in the Act.


Door One

Legal Advice - Clause 5

The first door is marked “Legal Advisor”. A disclosure made by a whistle-blower to someone for the purposes of getting legal advice about the disclosure is a protected disclosure. This would include the employee’s attorney or shop steward.

Door 1 - Clause 5
To a legal practitioner, or person whose occupation involves the giving of legal advice, the requirements are:
  • Seek advice about concern and how to raise it
  • Good faith is not a requirement
  • All advice is confidential



Door Two

An Internal disclosure - Clause 6

The Protected Disclosures Act signals that it is safest if concerns are raised internally. A disclosure to the employer will be protected if the whistle-blower acts in good faith, and follows the process set out for such disclosures by the employer. They should have a reason to believe that there is a problem of some sort, including the law being broken, the health or safety of people being endangered, or discrimination taking place. This is the door that the Protected Disclosures Act wants the potential whistle-blower to walk through, in everyone’s interest.

But it assumes that the employer will take the disclosure seriously and respond appropriately. The Protected Disclosures Act encourages employers to have in place a whistle-blower policy. A good policy will operate like a bright light on top of the Internal Disclosure door, signalling that this is the first, and best, route for the whistle-blower to take.

Door 2 - Clause 6
To an employer the requirements are:

  • In good faith
  • Substantially in accordance with any prescribed procedure



Door Three

Regulatory disclosures - Clause 8

The Act reinforces and strengthens the right to make disclosures to specified regulatory bodies. These currently include:

  • the office of the Public Protector
  • the office of the Auditor-General.

Disclosures to these bodies will be protected where the whistle-blower makes the disclosure in good faith and the employee reasonably believes the Public Protector or Auditor General would usually deal with the kind of problem that the whistle-blower wants to talk about. There is no requirement that the concern should first have been raised with the employer.

(Clause 8) - To regulatory bodies
Door 3 - Clause 8
To regulatory bodies the requirements are:
  • Good faith
  • Public Protector or Auditor-General
  • Reasonable belief that the concern falls within the mandate of these bodies
  • Information and allegations are substantially true



Door Four

Wider disclosures - Clauses 7 and 9

Workers can also be protected under the Act if they make wider disclosures (e.g., to the police, MPs, and even the media). This is known as a general protected disclosure. This protection applies where the whistle-blower honestly and reasonably believes that the information and any allegation contained in it are substantially true and that the disclosure is not made for personal gain. Crucially, to be protected there must also be a good cause for going outside and the particular disclosure must be reasonable.


In the case of door four, there are four good causes recognised in the law.

The four good causes

  1. the concern was raised internally or with a prescribed regulator, but has not been properly addressed
  2. the concern was not raised internally or with a prescribed regulator because the whistle-blower reasonably believed he or she would be victimised
  3. the concern was not raised internally because the whistle-blower reasonably believed a cover-up was likely and there was no prescribed regulator, or
  4. the concern was exceptionally serious.

Reasonableness

In deciding the reasonableness of the disclosure the adjudicatory forum will probably consider the identity of the person it was made to, the seriousness of the concern, whether the risk or danger remains, and whether the disclosure breached a duty of confidence the employer owed a third party. Where the concern had been raised with the employer or a prescribed regulator, the tribunal will also consider their response. This means it is not enough to have a whistle-blowing policy only - concerns that are reported must be investigated and action taken as appropriate. Finally protection may be lost if the worker failed to comply with a whistle-blowing policy the organisation had made available.


(Clause 7) - To an MEC
Door 4 - Clause 7
To a member of cabinet or executive council the requirements are:

  • Good faith
  • Your employer must be:
  1. an individual or body appointed in terms of legislation by a member of cabinet or executive council (e.g. National Directorate of Public Prosecutors)
  2. an organ of state falling in the area of responsibility of the member concerned

(Clause 9) - General Protected Disclosure
Door 4 - Clause 9
For General Protected Disclosure the requirements are:
  • Good faith
  • Reasonable belief that the information disclosed and allegations contained in it are substantially true, and
  • Allegations are not made for personal gain (excludes rewards payable in terms of law, e.g. South African Revenue Services, Police)
  • Reasonable to make the general disclosure under the circumstances
  • And that one or more of the following conditions are met:
  1. the impropriety is of an exceptionally serious nature
  2. the disclosure has been made to the employer and no action has been taken within a reasonable period
  3. the employee has reason to believe that the evidence will be concealed or destroyed if the disclosure is made to the employer and there is no regulatory body prescribed
  4. the employee has reason to believe that s/he will be subjected to occupational detriment