Aspects of whistleblowing in the South African Labour Law

Abstract

The main focus of this dissertation is to examine the operation of whistleblowing within an organisation. Whistleblowing constitutes an act by an employee to expose perceived unlawful activity by an employer or employee, within an organisation or company, to an authority in the position to redeem the situation. It is based on the presumption that any kind of business or organisation has to be governed by laws in order to protect society from fraudulent and corrupt practices. In South Africa, the Protected Disclosures Act of 2000 (PDA) sets out a clear and simple framework to promote responsible whistleblowing by reassuring workers that to remain quiet about perceived malpractice is not the only safe option and is aimed at safeguarding the employee who raises concerns. Thus, from a legal perspective, an employee making a disclosure under certain circumstances and prerequisites enjoys full protection of the law. Whistleblowing is thus not just about anonymously informing, but rather about raising a concern. However, whistleblowers, even if they act in good faith often risk recrimination, victimisation and sometimes dismissal. Therefore, in order to determine whether the PDA is applicable, certain criteria have to be met, pertaining to the definition of disclosures and of occupational detriment. A number of consequences may follow from the contravention of the PDA. The Act provides mechanisms for the employee to disclose sensitive information regarding alleged improper conduct by the employer. In order to enjoy the protection of the act the employee must have trusted the disclosed information to be true. However, not all disclosures constitute protected disclosures, and for the purposes of the PDA certain requirements have to be met. When it comes to automatically unfair dismissals, the most difficult issue remains that of causation. It is a courageous effort to blow the whistle on perceived corrupt or illegal practices by an employer of any kind, and such an action is often met with harsh retaliation. Therefore employees often remain reluctant to speak out about practices that might threaten the higher echelons of their organisational hierarchy. On a personal level, blowing the whistle may have severe consequences for the individual; dismissal being but one of them. Internationally there is growing recognition that the act of whistleblowing is healthy and necessary for organisations in order to control corruption and illegal practices. The international community has also implemented a variety of whistleblowing laws and procedures for protecting and encouraging those who speak out.