The Protected Disclosures Act
The Act provides protection to whistleblowers who,in good faith, disclose inappropriate acts perpetrated by others. The reportable non-compliant behaviours include but is not necessarily limited to acts of misconduct, criminality, non-compliance, unfair labour practices, maladministration, misappropriation, etc.
The act defines disclosure, as: any disclosure of information regarding any conduct of an employer, or an employee of that employer, made by any employee who has reason to believe that the information concerned shows or tends to show one or more acts of misconduct/unethical behaviour.
The Act deals amongst others with the following practices:
- Reporting provision - Former and current employees including workers (contractors, consultants and representatives engaged or employed on contract) of an organisation may freely disclose unlawful or irregular practices and/or behaviours by employers and employees, whether employed on a full or part-time basis without fear of retaliation or occupational detriment by the organisation (employer).
Reportable incidents include the following:
- That a criminal offence has been committed, is being committed or is likely to be committed;
- That a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject;
- That a miscarriage of justice has occurred, is occurring or is likely to occur;
- That the health or safety of an individual has been, is being or is likely to be endangered;
- That the environment has been, is being or is likely to be damaged;
- Unfair discrimination as contemplated in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No, 4 of 2000); or
- That any matter referred to in paragraphs (1) to (6) has been, is being or is likely to be deliberately concealed.
General Protected Disclosure
A disclosure is generally considered to be protected under the act in the event that:
- The disclosure is made by an employee in good faith:
- who reasonably believes that the information disclosed, and any allegation contained in it, are substantially true; and
- who does not make the disclosure for purposes of personal gain, excluding any reward payable in terms of any law.
- The disclosure is protected if (i) one or more of the conditions referred to in paragraph 3 applies; and (ii) in all the circumstances of the reported incident, it is considered as reasonable to make the disclosure.
- The conditions referred to above shall be considered to be met in the event that:
- At the time the employee who makes the disclosure has reason to believe that he or she will be subjected to an occupational detriment if he or she makes a disclosure to his or her employer
- In a case where no person or body is prescribed for the purposes of reporting in relation to the relevant impropriety the employee making the disclosure has reason to believe that it is likely that evidence relating to the impropriety will be concealed or destroyed if he or she makes the disclosure to his or her employe;
- The employee making the disclosure has previously made a disclosure of substantially the same information to (i) his or her employer or (ii) a person or body authorised by the Act, in respect of which no action was taken within a reasonable period after the disclosure; or
- The impropriety is of an exceptionally serious nature.
Protection Against Occupational Detriment
Occupational detriment includes the following prohibitions under the law. In these instances, the Act protects those who are willing to disclose wrongdoing with an organisation and as such prohibits the organisation or those in a position of power to unduly prejudice the whistle-blower.
The act defines occupational detriment towards an employee or worker as:
- Being subjected to any disciplinary action;
- Being dismissed, suspended, demoted, harassed or intimidated;
- Being transferred against his or her will;
- Being refused transfer or promotion;
- Being subjected to a term or condition of employment or retirement which is altered or kept altered to his or her disadvantage;
- Being refused a reference, or being provided with an adverse reference, from his or her employer;
- Being denied appointment to any employment, profession or office;
- Being subjected to any civil claim for the alleged breach of a duty of confidentiality or a confidentiality agreement arising out of the disclosure of: (i) a criminal offence; or (ii) information which shows or tends to show that a substantial contravention of, or failure to comply with the law has occurred, is occurring or is likely to occur;
- Being threatened with any of the actions referred to in paragraphs (a) to (h) above; or
- Being otherwise adversely affected in respect of his or her employment, profession or office, including employment opportunities, work security and the retention or acquisition of contracts to perform work or render services’’, resulting from the truthful disclosure of impropriety in good faith.
Reporting must always be done with the utmost sincerity, must be truthful, free from malicious intent, and/or harmful gossip. The whistleblower must reasonably believe that the information disclosed, and/or allegation made is substantially true.