Is your company whistleblowing compliant? Protected Disclosures Act

Is your company whistleblowing compliant? Protected Disclosures Act

Business, Legislation

The employment relationship is governed by a large number of formal Acts of legislation. One of those less talked about and often forgotten by Employers is the Protected Disclosures Act.

In essence this Act provides for protection for employees or workers who disclose information about wrongdoing (contravention of laws, health and safety or unfair employment practices) in the workplace.

The Act sets out the obligations for Employers with respect to following up on any disclosures and the time period in which these procedures should be followed. The Act also provides for immunity of prosecution for employees or workers for the disclosure itself, but not if they themselves have been party to any illegal acts.

From a practical perspective, employers should be aware of the Act and its implications and we would encourage employers to have an appropriate policy to deal with such matters and use publicly available technology/processes to manage any disclosures so that they do not create further risk for themselves. 

Should you wish to discuss possible solutions please feel free to contact us by email at [email protected].

The objective of this article is to make employers aware of the Act and its consequences, but it is not intended to be a summary of all provisions of the Act.

Protected Disclosures Act

“The objects of this Act are –

(a)   to protect an employee or worker, whether in the private or the public sector, from being subjected to an occupational detriment on account of having made a protected disclosure;
(b) to provide for certain remedies in connection with any occupational detriment suffered on account of having made a protected disclosure; and
(c) to provide for procedures in terms of which an employee or worker can, in a responsible manner, disclose information regarding improprieties by his or her employer.”

In the 2017 amendments, worker was expanded to include Temporary Employment Services workers creating an obligation for employers to also protect these individuals in specific circumstances. The amendments specifically allow for the TES worker to bring a claim against either their employer or the client.

Protected Disclosure:

Those activities covered by protected disclosure include:

“‘disclosure’ means any disclosure of information regarding any conduct of an employer, or of an employee or of a worker of that employer, made by any employee or worker who has reason to believe that the information concerned shows or tends to show one or more of the following:

a.   That a criminal offence has been committed, is being committed or is likely to be committed;
b. that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject;
c. that a miscarriage of justice has occurred, is occurring or is likely to occur;
d. that the health or safety of an individual has been, is being or is likely to be endangered;
e. that the environment has been, is being or is likely to be damaged;
f. unfair discrimination as contemplated in Chapter II of the Employment Equity Act, 1998 (Act No. 55 of 1998), or the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000); or
g. that any matter referred to in paragraphs (a) to (f) has been, is being or is likely to be deliberately concealed;”

Occupational Detriment:

The Act goes on to describe what is considered as occupational detriment which includes:

“‘occupational detriment’, in relation to [the working environment of] an employee or a worker, means –

a.   being subjected to any disciplinary action;
b. being dismissed, suspended, demoted, harassed or intimidated;
c. being transferred against his or her will;
d. being refused transfer or promotion;
e. being subjected to a term or condition of employment or retirement which is altered or kept altered to his or her disadvantage;
f. being refused a reference, or being provided with an adverse reference, from his or her employer;
g. being denied appointment to any employment, profession or office;
h. 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 –
a. a criminal offence; or
b. information which shows or tends to show that a substantial contravention of,
or failure to comply with
i. the law has occurred, is occurring or is likely to occur;
j. being threatened with any of the actions referred to in paragraphs (a) to (h) above; or
k. 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;”

Potential remedies for the employee or worker:

The Act provides for the payment of compensation and/or damages and/or reinstatement for any impacted employees or workers. The Act further provides that any dismissal in the circumstances is deemed to be an unfair dismissal and any other occupational detriment is deemed to be an unfair labour practice.