Whistleblowing In The Workplace

The Protected Disclosures Act

Whistleblowing is the raising of a concern about wrongdoing within an organisation or community. The danger of whistleblowing is usually in proportion to an organisation's culture of resisting transparency and accountability and whistleblowers often risk victimisation, vilification, reprisals and sometimes dismissal.

The Protected Disclosures Act came into force in 2001. It encourages bona fide whistleblowing by addressing the message, rather than the messenger and discouraging cover ups.

The Act applies to people at work raising genuine concerns about crime, civil wrongdoing, miscarriage of justice and danger to health or the environment.

Whistleblowing is important because it provides a risk management tool as an early warning system. Employers should therefore implement and maintain an effective whistle blowing policy thus demonstrating that it is properly run and managed.

What disclosures are protected?

Insofar as the workplace is concerned bona fide disclosures to a legal adviser or an employer are protected. Legal advisers include shop stewards, union organisers and attorneys.

Disclosures to the media
Employees may be protected under the Act for disclosures to the media where:

• the concern is of an exceptionally serious nature or
• he reasonably believes in the truth of the disclosure and it  is not made for personal gain and the disclosure was not raised internally or to appropriate authority because the whistleblower reasonably believed that he would be victimised, or a cover-up was likely or, no action was taken about the concern within a reasonable time

Employment contracts

Confidentiality clauses in contracts of employment are ineffective where such clauses conflict with the Act.

What protection does the disclosure have?

Provided the disclosure has been made properly and in accordance with the Act, an employee has the widest possible protection.  This includes protection against disciplinary action, dismissal, suspension, harassment, demotion, intimidation, refusal to transfer or promote, and altering terms of employment or retirement, providing an adverse reference or refusing to provide one. Generally an employee is protected against being adversely affected in respect of his employment, profession or office including employment opportunities and work security.

Remedies

A dismissal in breach of the Act is automatically deemed to be an unfair one and an employee may approach the Labour Court for relief, or institute any other proceedings allowed by law.

ODAC

The Open Democracy Advice Centre is a foreign funded NGO that offers free advice on all aspects concerning the Protected Disclosures Act. Their free helpline number is 0800 525352 and their website is www.opendemocracy.org.za

Follow this link to download ODAC's draft Whistleblowing Policy.

ODAC's draft Whistleblowing Policy

Bruce Lyle | Membership Services Manager