The Protected Disclosures Act: How to advise. By Gabriella Razzano. Whistleblowing definition.
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The Protected Disclosures Act:How to advise
By Gabriella Razzano
(a) Bringing an activity to a sharp conclusion as if by the blast of a whistle (Oxford English Dictionary);(b) Raising a concern about malpractice within an organisation or through an independent structure associated with it (UK Committee on Standards in Public Life); (c ) Giving information (usually to the authorities) about illegal or underhand practices (Chambers Dictionary); (d) Exposing to the press a malpractice or cover-up in a business or government office (US, Brewers Dictionary); (e) (origins) Police officer summoning public help to apprehend a criminal; referee stopping play after a foul in football.
Graphic from APS
Some whistleblowing cases
The official inquiries into all these disasters showed that the staff had been aware of the danger before the accident but had either:(a) Been too scared to raise the alarm(b) Had raised the matter in the wrong way or with the wrong people
“The task of aggregating and verifying multiple sources and data depends fundamentally on trust. Trust that the facts are accurate. Trust that appropriate weight has been given to context. And, make no mistake, ladies and gentleman, trust in the journalistic profession is a scarce commodity”. Lionel Barber
Department knew about death trap factory(Mail & Guardian, 24 Nov 2000)Witch-hunt for whistleblowers(Mail & Guardian, 15 Mar 2002)Minister on warpath after AIDS report leak(Star, 21 Mar 2002)Arms deal leak: who blew the whistle? (Mail & Guardian, 21 Mar 2002)Sex slaves, drugs and video tape (Star, 18 June 2002)Burn the evidence or your job’s on the line(Star, 20 June 2002)
South African Headlines
Factors Inhibiting Whistleblowing
I don’t want to be a sneak
It’ll only cause trouble
No-one else can be bothered?
It’s only a suspicion
Why not just keep quiet?
Worried by mbtphoto (Flikr)
I’m worried about telling my manager:
What will they do?
What if I’m found out?
The Protected Disclosures Act 2000
The law aims to provide a statutory framework which:
Applies to every employer and protects every employee
Wide definition of wrongdoing
Provides for financial (and other) compensation
Covers malpractice or “impropriety” which occurs outside the Republic of South Africa
Allows disclosures of impropriety to person other than employer
Image from The University of Iowa Libraries
If you are an employee that makes a protected disclosure, and you show the detriment you have experienced, this will be deemed to be automatically unfair.
(a) any person, excluding an independent contractor, who works for another person or for the State and who receives or is entitled to receive, any remuneration;
(b) any other person who in any manner assists in
carrying on or conducting the business of an employer.
Service providers and independent contractors are not covered by the PDA. However, the definition is far broader under the new Companies Act section 159(4).
In sub-section 4 of s159, the Companies Act extends the protections of the PDA to
• a registered trade union that represents employees of the company or another representative of the employees of that company
• a supplier of goods or services to a company
Worker by Photo by AgusAndrianto/CIFOR on Flicker
A criminal offence or miscarriage of justice
A failure to comply with any legal obligation
A danger to health & safety or damage to the environment
The likelihood that any of the above is, has or may occur
Deliberately concealing any of the above
What would constitute a disclosure?
Any disciplinary action - including dismissal, suspension, demotion, harassment or intimidation
A transfer against the employee’s will
Alteration of terms / conditions of employment to employee’s disadvantage...
What is occupational detriment?
Refusal of transfer or promotion
Refusal to provide reference or providing adverse reference
Refusal of employment or appointment to office
Threatening the employee with any of the above
By lawnborghini on Flickr
The Four Doors to Legal Protection: Door 1 (Clause 5)
To a legal adviser for the purpose of, or in the course of, obtaining legal advice.
The Four Doors to Legal Protection: Door 2 (Clause 6)
In good faith, to the employer - and / or using a procedure authorised by the employer, such as in a whistle-blowing policy...preferred first step
The Four Doors to Legal Protection: Door 3 (Clause 8)
In good faith, to a specified regulatory body (includes Public Protector and Auditor General)
The Four Doors to Legal Protection: Door 4 (Clause 7, 9)
Fear of occupational detriment?
Wider disclosure such as to the media, made in good faith and not for personal gain : it must be reasonable.
What you need to know about general protected disclosures
The 4th door:
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.
Concerns the act of going outside the organisation.
The four good causes:
Concerns the disclosure itself.
Possible factors include:
A victim can refer a dispute to the Commission for Conciliation, Mediation and Arbitration for conciliation and thereafter to the Labour Court.
Dismissal = unfair dismissal
Victimisation = unfair labour practice
Those dismissed for making a protected disclosure can claim either compensation, up to a maximum amount of two years salary, or reinstatement.
Those 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.