Protected disclosures
South Africa is ranked 69th out of 180 countries on Transparency International’s Corruption Index. Our score is 44 out of a possible 100 – 100 being very clean, zero being highly corrupt. So while many countries score lower than South Africa, 69th is nothing to be proud of. New Zealand and Denmark share first place. Conquering corruption is the responsibility of all South Africans. And one of the ways you can make a contribution to that effort is in the workplace. If you become aware of corruption at work, you have a duty to report it. However, employees, independent contractors or agents who expose corruption in their workplaces, called whistleblowers, often experience discrimination, mistreatment, or even dismissal. This may cause others to choose silence rather than risk the consequences.
The law offers protection to whistleblowers. However, there are circumstances under which this protection applies and certain legal questions that need to be examined to see whether a whistleblower qualifies for protection.
Protected disclosure
The Protected Disclosures Act and the Amended Act (“PDA”) defines two types of disclosures: a “protected disclosure” and a “general protected disclosure”.
The general protected disclosure covers a wide range of disclosures, including disclosures to the media, and overlaps with some of the meanings of a protected disclosure.
A protected disclosure is the disclosure of information to specific persons or bodies such as legal advisers, employers, members of Cabinet, the Public Protector or the Auditor-General. Factual information must be disclosed. Suspicion, rumours and personal opinion do not constitute “factual information”. Simply put, it is the disclosure of factual information in good faith about alleged criminal activity which the employee reasonably believes to be true.
Statutory requirements
Not every disclosure is protected by the provisions of the PDA. It must meet the statutory requirements relating to disclosures set out in section 1 of the PDA. Employees must also follow the prescribed procedure applicable to them when raising the alarm over any irregularities. Employees who do not follow the prescribed procedures or whose disclosures do not meet the requirements for a protected disclosure may not receive the protection against reprisals afforded by the PDA.
The disclosure must be made in good faith and the employee must reasonably believe that the information disclosed is substantially true.
Occupational detriment
If, when making a protected disclosure (whistleblowing), an employee is subjected to any negative consequences, this is classed as “occupational detriment”. This includes: disciplinary action, dismissal, suspension, demotion, harassment, being transferred against their will. The PDA protects employees against occupational detriment.
Type of protection provided by the PDA
If an employee is dismissed for a making a protected disclosure, or whistleblowing, in terms of the PDA, the dismissal will automatically be considered unfair and the employee will be able to make a punitive damages claim against the employer.
Employees may also interdict employers from taking any disciplinary proceedings brought against them for making protected disclosures.
Cape Town law firm SD Law can help
If you are aware of corruption in your workplace but are afraid of whistleblowing, give attorney Simon Dippenaar a call on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.
Simon Dippenaar
http://www.sdlaw.co.zaCape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.
View more posts from this authorThe information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.