Is a whistleblower protected when reporting on activities of their employer?

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Monday, October 28, 2019 – 11:20

 

The Protected Disclosures Act no. 26 of 2000 (PDA) protects employees from reprisals as a result of having blown the whistle on the employer. This applies whether the disclosure in question is made to authorities within or outside of the company/organisation concerned.

Under the PDA both employees and employers are protected. That is, employees are protected from reprisals when making disclosures in good faith. and employers are, to a limited extent, protected from employees who make unfounded and malicious disclosures. Therefore, while the PDA encourages genuine disclosures, it requires the employee, when making an external disclosure – to at least hold a genuine belief that the employer has acted wrongly.

Whistle blowing employees are also protected by sections 186(2)(d), and under section 187(1)(h), of the Labour Relations Act (LRA). The former section classifies as an “unfair labour practice”, any employer conduct short of dismissal, resulting in “an occupational detriment” to an employee, who has made a protected disclosure as per the PDA. The maximum compensation awarded to an employee successful in such a claim, would be 12 months’ remuneration.

The latter section of the LRA makes it automatically unfair for an employer to dismiss an employee, for having made a disclosure protected in terms of the PDA. While few such cases have been reported in labour law, it appears that the courts are trying to look after the interests of both employers and employees.

In Global Technology Business Intelligence (Pty) Ltd vs CCMA and others (2005, 5 BLLR 487) the Labour Court found that the employee’s report to his lawyer of alleged unfair discipline did not fall under the definition of a disclosure for purposes of the PDA. The Court therefore refused to assist the employee.

In the case of City of Tshwane Metropolitan Municipality vs Engineering Council of SA & another (2010, 3 BLLR 229), the municipality’s management rejected the job applications of white applicants chosen by the municipality’s selection panel. Management’s rejection of the white applicants was on the grounds that the posts were to be given to black applicants, despite the fact that those black people who applied, all failed an approved test.  The managing engineer objected to the management’s decision to appoint the candidates, who had failed the test, and sent a letter to this effect to his seniors, and then to the Department of Labour. He expressed his concern that the appointees, who had failed, were not qualified to do dangerous electrical work.

In response to this, the management disciplined the managing engineer, and found him guilty of distributing his objection letters without due permission. He applied to court for an interdict, against any form of sanction being implemented by the municipality. The Supreme Court of Appeal later found that the employer was not entitled to discipline the employee, who had blown the whistle, and ordered the employer to pay the employee’s legal costs.

In a 2006 case, the Minister of Justice is reported to have been taken to the Labour Court, for removing Mike Tshishonga, a former deputy director-general – from office, after Tshishonga had blown the whistle on the Ministry. The Sunday Times of 7 January 2007 reported on page 1, that the Minister of Justice as well as a then deputy director-general of Justice, were taken to the Labour Court, for removing Tshishonga, after he exposed alleged corruption in the liquidation industry, and alleged nepotism on the part of the Minister of Justice. According to The Sunday Times’s report theCourt found that: 

  • Tshishonga had been sidelined after refusing to appoint a friend of the Justice Minister; 
  • He was later axed after making public disclosures; 
  • The fact that the Minister and the former director-general had failed to testify in court, aggravated the claim made against them; 
  • It was not right that the Public Protector, Auditor-General, and Minister in the Presidency, had failed to probe the allegations; 
  • The dismissal of Tshishonga was “vicious”; and 
  • The Justice Department was required to pay Tshishonga 12 months salary in compensation, as well as his legal costs.

In view of the above, employers are advised to tread very carefully before acting against any employee, who makes allegations involving employer wrongdoing.

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: ivan@labourlawadvice.co.za.

To buy our e-book WALKING THE NEW LABOUR LAW TIGHTROPE please contact Ivan via ivan@labourlawadvice.co.za or 0828522973.

Source: Skillsportal.co.za

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