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The Protected Disclosures Act: How to advise. By Gabriella Razzano. Whistleblowing definition.

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The protected disclosures act how to advise

The Protected Disclosures Act:How to advise

By Gabriella Razzano


Whistleblowing definition
Whistleblowing definition

(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.


Journalists and whistleblowers you are often the whistleblowers means for disclosing information

Graphic from APS

Journalists and whistleblowers: you are often the whistleblowers means for disclosing information.



The costs of these scandals
The costs of these scandals?

  • Lives lost & livelihoods destroyed

  • Millions in fines, compensation & insurance

  • Crisis management

  • Jobs lost & reputations ruined

  • Loss of confidence - public & investors

  • Increased regulation


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 state of whistleblowing globally
The State of Whistleblowing Globally the staff had been aware of the danger before the accident but had either:

  • Wikileaks, but what of source protection?

  • Rise of whistleblowing-to-journalists facilities: Open Leaks, Green Hornet

  • Leaks and the future of journalism:

    “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 the staff had been aware of the danger before the accident but had either:(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


The state of whistleblowing in south africa
The State of Whistleblowing in South Africa the staff had been aware of the danger before the accident but had either:

  • 2011: 87,5% believe whistleblowers should be protected (20% increase)

  • 20% say they’d blow the whistle themselves

  • But violent responses have been reported: Moses Phakoewas murdered by Matthew Wolmarans for reportedly blowing the whistle.


Factors Inhibiting Whistleblowing the staff had been aware of the danger before the accident but had either:

  • Nothing will be done

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 the staff had been aware of the danger before the accident but had either:manager:

  • What if I am required to prove it?

  • How far up does it go?

  • What if I am wrong?


Who? the staff had been aware of the danger before the accident but had either:

How?

What will they do?

What if I’m found out?


The Protected Disclosures Act 2000 the staff had been aware of the danger before the accident but had either:


Aims the staff had been aware of the danger before the accident but had either:

The law aims to provide a statutory framework which:

  • Reassures workers with genuine concerns that there is a safe alternative to silence

  • Promotes better accountability

  • Makes risk management an issue for all staff and managers

  • Helps everyone separate the message from the messenger


Applies to every employer and protects every employee the staff had been aware of the danger before the accident but had either:

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

Broad Application

Image from The University of Iowa Libraries


Detriment or dismissal automatically unfair

Main Protection the staff had been aware of the danger before the accident but had either:

Detriment or dismissal automatically unfair

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.


Who s an employee
Who’s an employee? the staff had been aware of the danger before the accident but had either:

(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 the staff had been aware of the danger before the accident but had either:

A failure to comply with any legal obligation

A danger to health & safety or damage to the environment

Unfair discrimination

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 demotion, harassment or intimidationof 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


Nobody s perfect
Nobody’s perfect… demotion, harassment or intimidation

  • Protective scope too small

    • Only those whistleblowers who release within a formal employment relationship

    • excluding all persons in other commercial relationships with the relevant organisation such as customers, independent contractors

  • Range of recipients too narrow

    • SAHRC?

    • Public Services and Administration?


Issues with available remedies
Issues with available remedies demotion, harassment or intimidation

  • Resolutions of disputes are court-based

  • The PDA provides no immunity against civil and criminal liability arising out of the disclosure;

  • There is no express obligation on organisations in terms of the PDA to protect a whistleblower’s identity;

  • The remedies that are available are insufficient e.g. damages are limited to those damages in the Labour Relations Act.


There are four main routes for legal protection

By demotion, harassment or intimidationlawnborghini on Flickr

There are four main routes for legal protection….


The Four Doors to Legal Protection: Door demotion, harassment or intimidation1 (Clause 5)

To a legal adviser for the purpose of, or in the course of, obtaining legal advice.

  • Includes attorney, their shop steward or union organiser!


The Four Doors to Legal Protection: Door demotion, harassment or intimidation2 (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 demotion, harassment or intimidation3 (Clause 8)

In good faith, to a specified regulatory body (includes Public Protector and Auditor General)


The Four Doors to Legal Protection: Door demotion, harassment or intimidation4 (Clause 7, 9)

Exceptionally serious?

Fear of occupational detriment?

Likely cover-up?

Wider disclosure such as to the media, made in good faith and not for personal gain : it must be reasonable.


Practical advice

Practical advice demotion, harassment or intimidation

What you need to know about general protected disclosures


The 4 demotion, harassment or intimidationth door:

Wider 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.


A good cause
A good cause? demotion, harassment or intimidation

Concerns the act of going outside the organisation.

The four good causes:

  • the concern was raised internally or with a prescribed regulator, but has not been properly addressed

  • the concern was not raised internally or with a prescribed regulator because the whistle-blower reasonably believed he or she would be victimised

  • the concern was not raised internally because the whistle-blower reasonably believed a cover-up was likely and there was no prescribed regulator, or

  • the concern was exceptionally serious.


Reasonableness
Reasonableness? demotion, harassment or intimidation

Concerns the disclosure itself.

Possible factors include:

  • the identity of the person it was made to

  • the seriousness of the concern

  • whether the risk or danger remains

  • whether the disclosure breached a duty of confidence the employer owed a third party.

  • If raised with the employer or a prescribed regulator, the tribunal will also consider their response. It is not enough to have a whistle-blowing policy only – action taken must be appropriate.

  • Finally protection may be lost if the worker failed to comply with a whistle-blowing policy if available.


Recourse
Recourse demotion, harassment or intimidation

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.


Injustice anywhere is a threat to justice everywhere martin luther king jr
either compensation, up to a maximum amount of two years salary, or reinstatement. Injustice anywhere is a threat to justice everywhere.”-Martin Luther King, Jr.


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