How are whistle-blowers protected?

How far will the law protect you when you blow the whistle on fraud or corruption at your workplace? In South Africa today this is a pertinent question and an important one for us as citizens working towards an honest and ethical society. If we feel unprotected in making a disclosure of illegal behaviour this inhibits the freedom of persons to make the choice to disclose.

In South Africa we have since 2001 had comprehensive whistle-blower legislation in place which protects employees in the public and private sector from amongst others, harassment, discrimination, dismissal, disciplinary proceedings, victimisation and intimidation should they decide to blow the whistle on fraud, corruption or any other dishonest or illegal behaviour occurring in their place of employment by their employers or fellow employees. 

This legislation is the Protected Disclosures Act 26 of 2000 which aims to encourage ethical individuals within an organisation to raise their concerns within a legislative framework that promotes openness and accountability within the work place.

The Protected Disclosures Act promotes and protects responsible whistle-blowing by:

Providing a safe and effective way to make a protected disclosure about unlawful or corrupt conduct within the work place;
Reassuring employees that they are protected by legislation when they raise concerns internally;  and
By encouraging individuals to exercise their right to report undesirable activity within their work place to various protection agencies such as the Public Protector, the office of the Auditor General or any other appropriate law enforcement agency.

But what is a protected disclosure?

A protected disclosure is any disclosure made which contains information about impropriety and which disclosure has been made to the right authority in accordance with the Protected Disclosures Act.

When am I protected and to whom should I make my disclosure?

You are protected should you make a disclosure –

To someone for the purposes of getting legal advice. This would include an attorney or a shop steward.
To an employer in good faith and in accordance with any whistle-blower policy that your employer may have in place. The Protected Disclosures Act encourages employers to have a proper whistle-blower policy in place and good examples are easily obtainable on the internet.
To a regulatory body such as the Public Protector, Auditor General or any other appropriate regulatory or law enforcement authority (and even the media) and such disclosure is made in good faith and with a reasonable belief that the concern falls within the mandate of these bodies and that the allegations are substantially true and are not made for personal gain.

To what extent am I protected? 

Where an employee who has made a protected disclosure, suffers at the hands of his employer through amongst others, victimisation, intimidation, harassment or even dismissal as a result of the disclosure, the employee can refer the dispute to the Commission for Conciliation, Mediation, and Arbitration and thereafter if so required the matter can be referred to the Labour Court. In the event that the employee is dismissed for making a protected disclosure the employee can be awarded compensation up to a maximum amount of two years’ salary, and the employer could also be ordered to reinstate the employee. Employees who are not dismissed for making a protected disclosure but who have suffered harassment, transfer against their will, non-promotion, and a denial of appointment or are prejudiced in some or other way because of the making of a protected disclosure can also approach any court with jurisdiction for appropriate relief.

According to a recent statement by Deputy Public Protector Kevin Malunga almost 50% of organisational fraud in 2014 was detected through tip-offs. The tip-offs came from employees (49%), customers (21.6%), anonymous (14.6%) and vendors (9.6%). This shows that nearly 50% of disclosures are made by employees, reinforcing the importance of the protection afforded by the Protected Disclosures Act.

The protection of public and private sector whistle-blowers is an important mechanism in the fight against fraud, corruption and any other dishonest or illegal behaviour. If you are aware of improper conduct and are considering blowing the whistle, it may be advisable to consult with an attorney or labour specialist to help guide you through the process and ensure that you utilize the protection available to you in terms of the Protected Disclosures Act.

February 13, 2022

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