The Protected Disclosures Act
The SA government demonstrated its support for the concept of whistle blowing and acknowledged the need to offer legal protection to whistle blowers with the introduction of The Protected Disclosures Act, Act 26 of 2000 (“the Act”), aptly dubbed ‘the Whistle Blowers Act’. The Act introduced provisions for employees to report unlawful or irregular conduct by employers and fellow employees, while providing for the protection of employees who blow the whistle. The Act was amended by The Protected Disclosures Amendment Act, Act 5 of 2017), (‘the amended Act”).
The Act, as amended, makes provision for the following:
- Employees and workers, both former and current, to report unlawful or irregular conduct by employers and fellow employees and workers;
- Protection of both former and current employees and workers who blow the whistle from “occupational detriment” by employers when making certain “protected disclosures”;
- Connected matters.
The term ‘’workers’’, as distinct from “employees”, has been introduced throughout the amended Act to extend protection to employees of third-parties contracted to provide your organisation with services: temporary employment services (labour brokers), independent contractor, consultants and agents. An employer and their client (e.g. a temporary employment service) will now be jointly and severally liable for occupational detriment suffered by the client’s employee where the disclosure related to their employer’s customer.
The irregularities covered by the Protected Disclosures Act, as amended, relate to the following:
- Criminal offences;
- Failure to comply with certain legal obligations;
- Miscarriages of justice;
- Endangering of the health or safety of individuals;
- Damage to the environment; and
- Unfair discrimination as defined in the Employment Equity Act and the Promotion of Equality and Prevention of Unfair Discrimination Act.
In terms of the Act, the “occupational detriment” from which the whistle blower is protected is:
- Being subjected to any disciplinary action;
- Being dismissed, suspended, demoted, harassed or intimidated;
- Being transferred against his or her will;
- Being refused transfer or promotion;
- Being subjected to a term or condition of employment or retirement which is altered, or kept altered, to his or her disadvantage;
- Being refused a reference, or being provided with an adverse reference, from his or her employer;
- Being denied appointment to any employment, profession or office;
- Being subjected to a civil claim arising from their breach of any confidentiality requirement through the disclosure of a criminal act or of a planned or current failure to comply with a law;
- Being threatened with any of the actions mentioned above; or
- Being otherwise adversely affected in respect of his or her employment, profession or office, including employment opportunities and work security.
The Act further indicates that the disclosure is protected if made to certain persons, namely:
- Legal Advisor;
- Member of Cabinet/ Executive Council of Province, where relevant; where the employer is a Public Sector body;
- The Public Protector;
- The South African Human Rights Commission
- The Commission for Gender Equality
- The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities
- The Public Service Commission
- Auditor-General; and
- Any Person, prescribed in certain circumstances.
The Act further provides for remedies in the case of occupational detriment including:
- The payment by the employer (jointly with their client if applicable) of compensation, the payment of actual damages and the remedy of the occupational detriment suffered by the employee.
The Act provides additional protection to employees and workers:
- Against any civil, criminal or disciplinary proceedings that might otherwise be initiated where the disclosure is prohibited by any other law, oath, contract, practice or agreement requiring confidentiality. This does not protect the employee or worker from the consequences of any participation by them in the impropriety.
The amended Act provides protection to the employer against malicious claims by:
- Making it an offence to provide false information intentionally, and where this results in harm, a conviction may result in a fine, imprisonment for up to two years, or both a fine and imprisonment.
The amended Act provides for additional obligations on the employer including:
- A requirement to establish internal procedures for the reporting of impropriety and to communicate these to employees and workers.
- A requirement to provide written feedback on the progress and outcome of an arising investigation, or of the decision not to investigate and why, according to specified time frames.
The Act further indicates that the purpose of the legislation is:
- To protect employees and workers who blow the whistle;
- To provide for remedies for whistle blowers against certain occupational detriment;
- To provide procedures for whistle blowers to disclose information of improprieties in a responsible manner;
- To create a culture facilitating the disclosure of information by employees and workers relating to criminal and other irregular conduct in the workplace in a responsible manner; and
- To promote the eradication of criminal and other irregular conduct in the public and private sectors.
Disclaimer: The content in this overview of key aspects of The Protected Disclosures Act as amended is for informational purposes only and does not constitute legal advice. Always consult an employment law attorney to obtain advice with respect to any aspect of this legislation.
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