EMPLOYEES WHO BLOW THE WHISTLE ARE PROTECTED

The Protected Disclosures Act no. 26 of 2000 (PDA) protects employees from reprisals as a result of having blown the whistle on the employer. This applies whether the disclosure in question is made to authorities within or outside of the company/organisation concerned.

Under the PDA both employees and employers are protected. That is, employees are protected from reprisals when making disclosures in good faith. and employers are, to a limited extent, protected from employees who make unfounded and malicious disclosures. Therefore, while the PDA encourages genuine disclosures it requires the employee, when making an external disclosure, to at least hold a genuine belief that the employer has acted wrongly. 

Whistle blowing employees are also protected by sections 186(2)(d) and under section 187(1)(h) of the Labour Relations Act (LRA). The former section classifies as an “unfair labour practice” any employer conduct short of dismissal resulting in “an occupational detriment” to an employee who has made a protected disclosure as per the PDA. The maximum compensation awarded to an employee successful in such a claim would be 12 months’ remuneration.

The latter section of the LRA makes it automatically unfair for an employer to dismiss an employee for having made a disclosure protected in terms of the PDA. While few such cases have been reported in labour law it appears that the courts are trying to look after the interests of both employers and employees. 

In Global Technology Business Intelligence (Pty) Ltd vs CCMA and others (2005, 5 BLLR 487) the Labour Court found that the employee’s report to his lawyer of alleged unfair discipline did not fall under the definition of a disclosure for purposes of the PDA. The Court therefore refused to assist the employee.

In a 2006 case the Minister of Justice is reported to have been taken to the Labour Court for removing Mike Tshishonga, a former deputy director-general, from office after Tshishonga had blown the whistle on the Ministry. The Sunday Times of 7 January 2007 reported on page 1 that the Minister of Justice as well as a then deputy director-general of Justice were taken to the Labour Court for removing Tshishonga after he exposed alleged corruption in the liquidation industry and alleged nepotism on the part of the Minister of Justice. According to The Sunday Times’s report the Court found that:

• Tshishonga had been sidelined after refusing to appoint a friend of the Justice Minister
• He was later axed after making public disclosures
• The fact that the Minister and the former director-general had failed to testify in court aggravated the claim made against them
• It was not right that the Public Protector, Auditor-General and Minister in the Presidency had failed to probe the allegations
• The dismissal of Tshishonga was “vicious”
• The Justice Department was required to pay Tshishonga 12 months salary in compensation as well as his legal costs.

In Baxter v Minister of Justice and Correctional Services and others
[2020] 10 BLLR 968 (LAC) the employee was dismissed after he became involved in a protracted dispute with the Regional Commissioner. The employee had alleged at Labour Court that he had been dismissed for disclosures he had made about manipulation of the selection of five candidates for vacant positions. The Labour Court found against the employee.

The Labour Appeal Court found that the appellant’s disclosures related to irregularities in the recruitment and selection processes and, accordingly, constituted protected disclosures. Even if some of his allegations had been made for an ulterior motive, it did not follow that he had acted in bad faith; his disclosures were not tainted by dishonesty and their contents were for the most part true.

The Court noted that the department had led no evidence relating to the charges of misconduct. It was apparent, however, that the remaining four charges on which the appellant had been found guilty were implausible and trivial and designed to cover the true reason for his dismissal.

The appeal was upheld with costs and the appellant was awarded compensation equal to 18 months’ remuneration. 

In view of the above employers are advised to tread very carefully before acting against any employee who makes allegations involving employer wrongdoing.

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BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: ivan@labourlawadvice.co.za. Website: www.labourlawadvice.co.za.