When South Africa strengthened its Protected Disclosures Act of 2000 (‘the PDA’) in a wide-reaching Amendment Act gazetted in August 2017, it introduced an obligation on employers to provide ‘employee or worker’ whistleblowers with written feedback according to very specific time-frames.
In some instances giving feedback is an impossible and even inadvisable action, in others it can be that the need to close the loop with the original whistleblower is overlooked. It is also the case that some internal reports are simply never escalated and attended to, being swept under the proverbial carpet.
Whether the reason for a lack of feedback is justifiable or not, it is a regular occurrence that gives rise to the often-expressed view that concerns raised by employees fall on deaf ears. This perception deters future direct reporting, which is not in your interests as an employer, nor consistent with the objectives of the PDA.
In responding to this reality, a ‘Duty to Inform Employee or Worker’ has been placed upon employers through the insertion of Section 3B into the principal Protected Disclosures Act. In this article we offer a step-by-step guide to applying the ‘Duty to Inform’ requirement, and conclude with some advice for gaining maximum benefit from reports made anonymously through an external hotline provider.
If you would like to refresh your knowledge of the original Protected Disclosures Act, you can access a copy here and you will find the gazetted Amendment Act here. There is a summary overview on our website here and if you missed the original blog read it now: What you need to know and do: Amendments to the Protected Disclosures Act.
A Six-Step Guide to the ‘Duty to Inform Employee or Worker’ Obligation
While we await the issue of detailed Justice Department guidelines for employers to follow when meeting the already-applicable obligations of Section 3B of the amended PDA, we have constructed a series of questions and answers that aims to help you navigate this new terrain:
1. Has the whistleblower made their identity known to you (and do you have their contact details)?
- YES – You may have a duty to inform the employee or worker
- NO – You do not have a duty to inform the person (impossibility of performance)
2. Is (or has) the whistle-blower been employed in your organisation or are they or have they been in a relationship of service to you by virtue of their position as a consultant, agent or temporary employment service or an employee of such a service provider?
- YES – You have a duty to inform employee or worker
- NO – You do not have a duty to inform the person in terms of the amended PDA
3. If YES, is an investigation going to be undertaken or not?
- YES – Investigation will take place
As soon as reasonably possible but within 21 days, acknowledge receipt of the disclosure in writing, advise that an investigation is to be undertaken, and provide an estimated time-frame for its undertaking.
- NO – Investigation will not take place
As soon as reasonably possible but within 21 days, acknowledge receipt of the disclosure in writing, inform the whistleblower in writing that an investigation will not take place and explain why.
- UNKNOWN – matter is being referred to another person or body to decide
As soon as reasonably possible but within 21 days, acknowledge receipt of disclosure in writing, advise that the disclosure has been referred on to another party for a decision. Note: This party then assumes the obligation to apply their mind, decide and inform the whistleblower as follows:
♦ YES – Investigation will take place
As soon as reasonably possible but within 21 days of the referral being received, advise the whistleblower in writing that an investigation will be undertaken, where possible providing an estimated time-frame for the undertaking.
♦ No – Investigation will not take place
As soon as reasonably possible but within 21 days of receiving the referral, inform the whistleblower in writing that an investigation will not take place and explain your decision.
4. What if you cannot decide within these intervals whether or not an investigation will take place? Provide written feedback at least every two months until decision reached: After the first 21-day period, if the matter is not referred to another person or party for a decision, or after the second 21-day period if the matter is referred on, the whistleblower needs to be given written feedback at least every two months until the matter is brought to a conclusion.
5. Is there a limit to the total time that can be spent deciding on whether or not to undertake an investigation? The six month maximum: You have a maximum of six months to advise the whistleblower in writing if an investigation is going to proceed, if so how long it is likely to take, and if not, why not.
6. Advise in writing on conclusion of the matter: Finally, whenever the matter is concluded, the whistleblower must be advised of the outcome of the investigation into the disclosure including any arising action.
In fulfilling your obligations to inform, there are two further provisions that you need to know about. The first may be a relief but the second significantly expands the scope of your obligations:
Limits on the extent of detail in feedback required: In fulfilling your obligations as set out in our proposed six-step process, you are not required to provide the whistleblower with information that could compromise your ability to prevent, detect or investigate a criminal offence.
The new challenge of your obligation to ‘workers’ and not just employees: If the whistleblower is the employee of your temporary employment service provider you share responsibility for fulfilment of the obligations of the PDA as amended. You also have an obligation in terms of the Act to the workers of your consultants and agents. It is in the nature of whistleblowing matters that all associated communication needs to be handled with great caution to avoid breaches of the prohibition against the ‘occupational detriment’ provisions. Communication becomes even more complex when more than one employer is involved. We recommend that you consider in advance the mechanisms by which you will handle reports by workers who are not your employees, in the context of your relationship with your service providers.
Applying the ‘Duty to Inform’ Concept to Anonymous Reporting via your Hotline Service Provider
The ‘duty to inform’ provisions are likely to be sounding onerous right now, but fulfilling them has a number of benefits. It is these benefits that we often regret not being able to achieve when a whistleblower has chosen to maintained anonymity.
There are times when we would like the ability to correct a genuine misperception and put a whistleblower’s mind at rest. There are times when we have a question or two for the whistleblower that would make all the difference to our ability to investigate their claim. Certainly, we often want to convey our thanks to a whistleblower who has spoken up in an organisation’s best interests.
In the experience of Whistle Blowers Pty Ltd, who have been taking reports as an external hotline provider since 2000 and now operate on six continents and in 26 countries, an employer’s engagement with the anonymous whistleblower via the independent service is not only possible but highly advantageous.
Whistle Blowers’ Director Dale Horne explains that all callers are provided with a reference number to use so that they can call back for follow-up purposes while maintaining anonymity. As many callers choose to provide the hotline operator with their contact details on condition of confidentiality, Whistle Blowers is easily able to contact the whistleblower with feedback or follow-up questions on their clients’ behalf.
He adds that employers who make use of this facility not only obtain maximum benefit from the service and the reports received, but often find that the whistleblower is so encouraged by the engagement via a professional third-party that they choose to make their identity known and continue the engagement on a direct, open basis.
Looking forward and a disclaimer
In terms of the Act, the Department of Justice must issue implementation guidelines for employers, and these have yet to be updated following the amendment of the PDA. The six-step process we set out here will be updated as necessary when the guidelines are gazetted. Future case law will assist us better understand how the provisions are to be interpreted and applied. Even if you do not know the identity of a whistleblower, an independent hotline provider can help you to achieve the good intentions of Section 3B of the amended Protected Disclosures Act.
For more information about Whistle Blowers see www.whistleblowing.co.za or email Dale Horne at firstname.lastname@example.org. You can also learn more about Whistle Blowers, including their certification as an independent hotline provider with The Ethics Institute, in the Whistle Blowers March 2018 newletter which you will find here.
Written for Whistle Blowers Pty Ltd by Penny Milner-Smyth
Disclaimer: This document is for information purposes only and does not constitute legal advice, it is recommended that any interpretation queries be addressed to your legal advisor.