Whistleblowers: How do we guard the guardians?

In a letter to fellow South Africans on 30 August 2021, President Cyril Ramaphosa described whistle-blowers as “important guardians of our democracy.” The President also said “While numerous systems are in place to enable whistle-blowers to report wrongdoing anonymously, we need to tighten up existing systems and provide greater support to those who publicly come forward with information.”

In the employment law context, the Constitution, the Labour Relations Act, the Protected Disclosures Act and the Companies Act are relevant.

The Constitution provides in section 9 of the Bill of Rights that everyone is equal before the law and has the right to equal protection and benefit of the law. Section 16 of the Bill of Rights provides that everyone has the right to freedom of expression which includes, amongst others, the freedom to receive or impart information.

The Protected Disclosures Act (the PDA), which is commonly referred to as “The Whistle Blowing Act” makes provision for employees to report unlawful or irregular conduct by employers or employees. In the event that a “disclosure” falls within the definition of “protected disclosure” in the PDA, the employee is entitled to protection. The employee will only qualify for protection in the event that the employee complies with the PDA.

Section 6 provides that a disclosure is protected if it is made in good faith and is substantially in accordance with any reporting procedure prescribed or authorised by the employee’s employer. Alternatively, the disclosure will be protected if it is made in good faith to the employer of the employee where there is no prescribed or authorised reporting procedure.

Section 9 provides that a disclosure is only protected if an employee makes it in good faith, reasonably believes it to be true, does not make it for personal gain or reward, meets one of the conditions in subsection 2 and it is reasonable to make it in all the circumstances. One of the conditions contained in subsection 2 is that the employee has reason to believe that the employee will suffer an occupational detriment if the disclosure is made in accordance with section 6. When determining whether it is reasonable to make the disclosure, factors such as the identity of the person to whom the disclosure is made, the seriousness of the impropriety, whether the impropriety continues and the public interest are considered. Given the extensive list of requirements for a disclosure to fall within the definition of a “protected disclosure”, employees ought to familiarise themselves with the provisions of the PDA prior to making any submissions in this regard.

Section 186(2) of the Labour Relations Act (LRA) provides that an unfair labour practice includes any act or omission by an employer which involves an occupational detriment, other than dismissal, in contravention of the PDA on account of the employee having made a protected disclosure as defined in the PDA. Section 187 of the LRA provides that a dismissal is automatically unfair if the reason for the dismissal is a contravention of the PDA by the employer on account of the employee having made a protected disclosure as defined in the PDA.

Section 159 of the Companies Act makes provision for the protection of whistle blowers provided certain requirements are met. If these requirements are met, the whistle-blower has qualified privilege in respect of the disclosure and is immune from any civil, criminal or administrative liability for that disclosure. The section also makes provision for a whistle-blower to be compensated for damages suffered as a result of making a disclosure in certain circumstances. Importantly, the section requires that employers establish and maintain a system to receive disclosures confidentially, and act on them and routinely publicise the availability of that system to, amongst others, employees.

Whilst there is clearly a legal framework in place which requires employers to provide employees with all the tools necessary to disclose certain information in a confidential and anonymous manner, there are significant challenges associated with successfully prosecuting those involved in unlawful activities. It is often necessary, in order to satisfy the burden of proof, that these employees reveal their identity in order to provide evidence in relation to the unlawful activity. There are, unfortunately, many examples of employees whose careers have been ruined as a result of their decision to blow the whistle. They are often referred to as “disgruntled” employees “with an axe to grind” and their integrity is called into question. Other employees, including the late Babita Deokaran, have paid with their lives.

President Ramaphosa said on 30 August 2021 that Deokaran was a hero and a patriot “as are the legions of whistle-blowers who, at great risk to themselves, help to unearth instances of misdeeds, maladministration, cronyism and theft.”

According to reports, the government is in talks to improve the protection of whistle-blowers and has noted that the challenge may lie in the definition of “whistle-blower” due to the manner in which some information is revealed by employees such as during routine investigations. In other words, the disclosure may not be “protected” since the requirements as set out in the PDA for a disclosure to be “protected” may not be met.

It is in the interests of both the public sector and the private sector to ensure that the mechanisms and systems which are in place for the purposes of reporting wrongdoing as well as the protection offered to employees who choose to do so and/or who inadvertently do so are improved as the cost of unlawful activity to the employer undoubtedly outweighs the cost associated with improvements to those systems and protections.

This article was first published by News24 on 02 September 2021.