lvan lsraelstam, CEO of Labour Law Management Consulting says employees who blow whistles are protected
Employers are advised to tread very carefully before acting against employees.
The Protected Disclosures Act no.26 of 2000 (PDA) protects employees from reprisals as a result of having reported the employer to authorities within or outside of the 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.
Whistle-blowing employees are also protected by section 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 resulting in “an occupational detriment” to an employee who has made a protected disclosure PDA.
The latter section of the LRA makes it automatically unfair for an employer to dismiss an employee for having made a protected disclosure.
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 disclosure for purposes of the PDA.
However, in the case of Grieve vs Denel (Pty) Ltd (2003, 4 BLLR 366) an employee was suspended and notified of a disciplinary hearing while he was preparing to report to the board of directors alleged wrongdoings of the employer’s general manager.
The employee alleged that, when the employer discovered that the employee had obtained certain information against the general manager, it took disciplinary action against him.
Grieve applied to the Labour Court for an urgent interdict against the disciplinary hearing being carried out. The court found that:
- There was enough evidence to show that the intended disclosure had some substance
- Discipline does fall under the heading of occupational detriment.
As a result, the court upheld Grieve’s application for the interdict.
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 that the minister was taken to the Labour Court for removing Tshishonga after he exposed alleged corruption in the liquidation industry. 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 view of the above employers are advised to tread very carefully before acting against any employee who makes allegations involving employer wrongdoing.