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Whistle blowing
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CWU vs MTN 2003 Labour Court (JS 803/03), per Van
Niekerk AJ
[15] Section 4 of the PDA provides that for the purposes of the
Labour Relations Act, 66 of 1995 (the LRA) any dismissal in breach
of the requirement that employees may not be subject to an
occupation detriment by an employer, is an automatically unfair
reason for dismissal. Any other occupational detriment in breach
of the same obligation is deemed to be an unfair labour practice
for the purposes of the same Act. With effect from 1 August 2002,
the LRA was amended to incorporate these provisions into Chapter
VIII of that statute.
[16] An occupational detriment is defined
in section 1 of the PDA. In relation to the working environment of
an employee, the definition includes being subject to any
disciplinary action, or being dismissed, suspended, demoted,
harassed or intimidated, or being threatened with any of these
actions.
[17] Disclosure is also defined in section
1 of the PDA. The definition reads as follows -
disclosure means any disclosure of information regarding any
conduct of an employer, or an employee of that employer, made by
any employee 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; .
[18] Section 6 of the PDA protects
employees who make protected disclosures to their employers.
Subsection (1) reads as follows -
Any disclosure made in good faith -
(a) and substantially in accordance with any procedure prescribed,
or authorised by the employees employer for reporting or otherwise
remedying the impropriety concerned; or
(b) to the employer of the employee, where there is no procedure
as contemplated in paragraph (a).
[19] If a disclosure is made to an
employer in terms of section 6 of the PDA, a number of conditions
must be satisfied before that disclosure can be protected. The
person claiming the protection must be made by a person who is an
employee. The employee must have reason to believe that
information in his or her possession shows, or tends to show, the
range of conduct that forms the basis of the definition of
disclosure. The employee must make the disclosure in good faith.
If there is a prescribed procedure or a procedure authorised by
the employer for reporting or remedying any impropriety, then
there must be substantial compliance with that procedure. If there
is no procedure that is either prescribed nor authorised, the then
the disclosure must be made to the employer. If any procedure
authorised by the employer permits the making of a disclosure to a
person who is not the employer, the employer is deemed to have
made the disclosure. Finally, it seems to me that there ought to
be some nexus between the disclosure and the detriment. I don't think that it is necessary, as Mr Pretorius implied, that the
detriment be directly linked to the disclosure in the sense that
an employee would be entitled to a remedy if and only if the
detriment threatened or applied by the employer is so threatened
or applied expressly for the making of a disclosure. This would
permit unscrupulous employers to create pretexts upon which to
effect occupation detriments and undermine the purpose of the PDA.
Provided that there is some demonstrable nexus between the making
of the disclosure and the occupational detriment threatened or
applied by the employer, the protections of the PDA should apply.
[20] I agree with the observation by
Pillemer AJ in Grieve v Denel (Pty) Ltd (2003) 24 ILJ 551 (LC)
that the PDA seeks to encourage a culture of whistle blowing. The
Preamble to the PDA records that it is incumbent on every employer
an employee to disclose criminal or irregular conduct in the
workplace, and that employees should be protected against
reprisals as a result of such disclosures. Good, effective and
transparent governance by employers is obviously in the broader
social interest and employees should be encouraged, without fear
of reprisal, to disclose information relating to suspected
criminal and other irregular conduct by their employers. It is not
insignificant that the PDA was originally conceived as an integral
part of the Open Democracy Bill.
[21] However, as I have noted, the
protection extended to employees by the PDA is not unconditional.
The PDA sets the parameters of what constitutes a protected
disclosure, as well as the manner of permissible disclosure by
workers. The definition of disclosure clearly contemplates that it
is only the disclosure of information that either discloses or
tends to disclose forms of criminal or other misconduct that is
the subject of protection under the PDA. The disclosure must also
be made in good faith. An employee who deliberately sets out to
embarrass or harass an employer is not likely to satisfy the
requirement of good faith. It does not necessarily follow though
that good faith requires proof of the validity of any concerns or
suspicions that an employee may have, or even a belief that any
wrongdoing has actually occurred. The purpose of the PDA would be
undermined if genuine concerns or suspicions were not protected in
an employment context even if they later proved to be unfounded.
There is no doubt why disclosures made in general circumstances
require in addition to good faith a reasonable belief in the
substantial truth of the allegation. However more extensive the
rights established by the PDA might be in the employment context,
I do not consider that it was intended to protect what amounts to
mere rumours or conjecture.
Short description
In Case Nr JS 803/03, CWU vs MTN in the Labour court in 2003
before AJ Van Niekerk puts forward various legal aspects
concerning employees who blow the whistle on their employers, or
fellow employees.
Keywords and related phrases
protection, whistle blowing
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2007
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