By Dannaline Janse van Rensburg
Rustenburg Branch Manager
Most whistleblowers are internal whistleblowers, who report misconduct to a fellow employee or superior within their company. One of the most interesting questions with respect to internal whistleblowers is why and under what circumstances people will either act on the spot to stop illegal and otherwise unacceptable behavior or report it. There is some reason to believe that people are more likely to take action with respect to unacceptable behavior, within an organization, if there are complaint systems that offer not just options dictated by the organization, but a choice of options for individuals, including an option that offers near absolute confidentiality.
The Protective Discloser Act 26 of 2000 protects persons, including employees, against dismissal of any prejudicial conduct if they disclose information to certain persons concerning inter alia the commissions of criminal offences, miscarriage of justice, unfair discrimination and conduct detrimental to health and safety or the environment.
Dismissal of employees for disclosing such information is automatically unfair, provided that the discloser is made in good faith and if the information is correct or the employee is led to believe that it was true.
‘Discloser’ means the publication of information by a person who has reason to believe that information constitutes criminal conduct, the failure by a person to discharge a legal obligation or miscarriage of justice.
In terms of the Protective Discloser Act, a discloser is protected if:
- the publisher is an employee;
- the employee has a reason to believe that the information indicates conduct included in the definition of ‘discloser’;
- the discloser is made in good faith;
- there must be some nexus between the discloser and the detriment, and
- the discloser was not made publicly.
The Protective Discloser Act is designed to encourage a ‘culture of whistle blowing’. The application of this provision will be illustrated through two case:
The applicant in Grieve v Denel (Pty) Ltd (2003) 24 ILJ 551 (LC) was preparing a report for the company’s board concerning certain allegations of wrongdoing by the general manager of one of its division when he was charged with misconduct, suspended from his duties and summoned to attend a disciplinary hearing. The employee referred the case to the CCMA claiming he was victim of an unfair labour practice. The employee launched an urgent application for an order restraining the company from instituting disciplinary action against him pending the outcome of the inquiry. The court held that the discloser which the employee intended to make appeared to be bona fide and that if true, those disclosures revealed possible criminal conduct. Prima facie, the discloser accordingly fell within the terms of the Protective Discloser Act. Although the employee was not expressly charged with making disclosures, the charges against him related to the manner in which he had obtained the information on which the discloser were based. The court held that an ‘occupational detriment’, against which employees are protected under the Protective Discloser Act, is wide enough to include being subject to disciplinary action.
The applicant employee in CWU & and another v Mobile Telephone Networks (2003) 24 ILJ 1670 (LC) was less successful. The employee accused his superior of giving preferential treatment to a particular labour broker from which it hired workers. This allegation was made twice via e-mail to MTN’s business risk unit, as well as number of senior employees. The employee subsequently accused MTN’s management of corruption. The employee was suspended and summoned to attend a disciplinary hearing. The employee obtained a temporary interdict restraining the company from instituting disciplinary action. On the return date, the court accepted that an ‘occupational detriment’, for the purpose of the Protective Discloser Act, includes being dismissed, demoted, harassment or intimidated. The court held that the employees’ allegations did not convey information; it was merely expressions of his opinions. There was no factual basis in any of his communications to justify the conclusion that MTN’s management had acted improper. The employee's discloser had been made publicly and he had made no attempt to make use of MTN’s elaborated procedures for reporting alleged wrongdoing. The applicant was dismissed with costs.
Labournet consultants are specifically trained to assist companies with the implementation of a whistleblower policy to limit the risks associated with embarking on this form of action together with the drafting thereof.
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