The do’s and don’ts of whistle-blowing

2010-03-02 00:00

WHEN employees disclose private or damaging information about their employer, they may be protected from negative consequences by the Protected Disclosures Act (PDA) (No. 26 of 2000). This type of disclosure is often made to expose corruption or fraud at work, and has become known as “whistle-blowing”.

Employees will only be protected if the disclosure and the manner in which it was made complies with the requirements of the PDA. For starters, the disclosure will only be protected if it is made to a person or organisation stipulated in the PDA. These include lawyers, the employer, the provincial cabinet, or an executive council of cabinet, the Public Protector or the auditor general. The PDA is very precise with regard to the procedure that whistleblowers must follow. Whistle-blowers must follow the formal procedures set up by the employer first and even if there are no specific procedures, employees must approach the employer first, before taking the complaint further.

The PDA requires good faith on the part of whistle-blowers, who must have a reasonable belief in the truth of the information disclosed. This will usually require employees to be able to substantiate the allegations with evidence.

If employees later feel that they are being punished in any way for making that disclosure and can identify a link between the disclosure and the detriment that they are suffering, the PDA will protect them. Negative consequences of whistle-blowing could include whistle-blowers being disciplined, dismissed, suspended, demoted, harassed, intimidated, excluded from training programmes, being refused a bonus or any other action that is designed to sideline or disadvantage them.

Employees will not be protected by the PDA if their disclosures are sourced from malicious gossip, for example. Nor will they be protected if the disclosure is made for any kind of personal gain, or out of a desire to harass or embarrass the employer or a colleague. The disclosure must be made in good faith which has a core meaning of honesty and a reasonable belief that the information disclosed is substantially true.

There is a growing number of cases where employees seek to avoid dismissal, or other negative consequences, by relying on the PDA. However, many such cases fail because of the whistle-blower’s noncompliance with the requirements of the act.

 

• The Pietermaritzburg campus of the law faculty of the University of KwaZulu-Natal is celebrating its centenary this year.

As part of its centenary celebrations, legal academics from the Pietermaritzburg campus will be publishing a series of articles on current legal developments, and other interesting topics in The Witness. The series will run over the course of a year and the articles will appear fortnightly. The intention of the series is to provide useful and stimulating information to Witness readers, and also to provide a link between the law faculty and the broader community. The topics to be dealt with will cover the spectrum from constitutional law to employment law and criminal law, and beyond. There will be comment on developments in the legal profession, the criminal justice system and within the Department of Justice itself.

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