In recent times the role of the whistle-blower has come to the forefront when it comes to arbitrations as well as disciplinary action in the workplace. As companies look at ensuring they clean up their act and reinforce the fact there is no room for corruption in the workplace, a number of them have launched whistle-blowing hotlines so that an environment is created where people feel comfortable that their identity will be protected when they make a protected disclosure.
What Is A Protected Disclosure?
To qualify as a protected disclosure, one has to look at whether the behaviour amounts to disclosure as well as whether this would fall within the realm of a protected disclosure. 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 offense 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;
d) That the health and safety of an individual has been, is being or is likely to be endangered;
e) That the environment has been, is being or is likely to be damaged;
f) Unfair discrimination as contemplated in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000); or
g) That any matter referred to in paragraph (a) to (f) has been, is being, or is likely to be deliberately concealed.
Protected disclosure means a disclosure made to:
a) A legal advisor in accordance with section 5;
b) An employer in accordance with section 6;
c) A member of Cabinet or of the Executive Council of a province in accordance with section 7;
d) A person or body in accordance with section 8;
e) Any other person or body in accordance with section 9 but does not include a disclosure – i.
In respect of which the employee concerned commits an offense by making that disclosure; or ii. Made by a legal adviser to whom the information concerned was disclosed in terms of obtaining legal advice in accordance with section 5. Organisations continuously attempt to address corruption and other illegal activities through various mechanisms, including putting these whistle-blowing processes in place. Experience shows a number of challenges that do arise from this.
How To Create The Right Environment For Whistle-Blowing
The Code of Good Practice booklet provides a good explanation around this and rather than re-invent the wheels, I shall quote from this: Creating a considered and detailed whistle-blowing policy is a first and necessary step for ensuring the right environment throughout an organisation and is a legal obligation in terms of the PDA. In constructing a policy, employers should consult employees and their trade union representatives to create a policy and establish procedures that will enable employees and management to raise concerns about wrongdoing. Employees and workers should be confident that their allegations will be taken seriously, that any wrongdoing that is unearthed will be dealt with, and that any persons involved whether directly or indirectly in covering up wrongdoing, will be called to account and, where appropriate, be required to reimburse the employer for undue benefits that they have received. It is important for employers to encourage employees to raise concerns that are honest even if they are mistaken. There is also a legal obligation for employers to take reasonable steps to ensure employees and workers know about the policy. Outside of a policy, it is important that all levels of management and staff speak about whistle-blowing in a language that acknowledges how useful, and vital, authentic dissent can be for an organisation. Whistle-blowers need to be understood as compatriots, who actively contribute to an effective and innovative environment. Perhaps most practically, employers, especially those in the public sector, must allocate sufficient and appropriate resources for the purpose of receiving protected disclosures.
What should the Company do when Receiving a Disclosure?
Again the code of good practice provides us with the following guidelines. “As mentioned earlier, if it has been requested, you should do everything you can to keep the identity of the whistle-blower confidential. You should also follow up and investigate the complaint as soon as possible or refer the complaint to someone best placed to investigate. Throughout this time, you must keep the whistle-blower aware of what actions are being taken. The PDA creates very specific rules about your obligations to inform the employee or worker of what steps to are being taken in section 38. If serious wrongdoing is revealed, the employer should take appropriate measures, including criminal and civil proceedings to recover losses that have been incurred. This is not only for financial recovery reasons – the act of following up ensures other employees that their disclosures won’t be made in vain. Particular efforts should be made to take direct action against anybody who may try and victimize the whistle-blower at work.”
How do we go about Dealing with the Issue, Protecting the Identity of the Alleged Whistle-Blower, and Making Certain that the Whistle-Blower is Not in any way Exposed to any Occupational Detriment?
Here particularly the Act is clear that no whistle-blower should be exposed to any occupational detriment and if they are, there could be severe consequences for those who do expose the whistle-blower to occupational detriment. Without quoting from the Act, the remedies include the fact that the courts, including the labour court, can be approached for appropriate relief or the whistle-blower can pursue any other process allowed or prescribed by any law. For the purposes of the Labour Relations Act, this would include, potentially, a case of an automatically unfair dismissal or an unfair labour practice. Employers would be well placed to protect the identity of the witness as far as possible and consider whether it would be appropriate to have an in-camera process where the identity of the witness is protected, alternatively put measures in place such as the suspension on full pay of the alleged accused, etc. to limit the risk of an occupational detriment.
What if there is an Abuse of the Whistle-Blowing Hotline?
The flip side of this is that people use the whistle-blowing hotline with mala fides (in bad faith). If this is established and you can identify the whistle-blower then no doubt disciplinary action can be taken against the whistle-blower for abuse of company process. The disciplinary action would flow from the abuse of the processes that are there to assist employees. Whilst a whistle-blowing hotline provides the necessary support to organisations to be able to have issues raised without fear of victimisation and to weed dishonesty and corrupt activities, no doubt this does prove challenging for organisations as has been found in my experience in disciplinary inquiries as well as arbitrations. It would be well placed for training to be provided to ensure that parties know how to use the whistle-blowing hotline and the purpose thereof as well as when they receive protection in terms of making a protected disclosure. In addition, thereto, it assists organisations in reacting, and conducting investigations properly, and leads to efficient management of such whistle-blowing reports. We have over the years assisted organisations with the investigations flowing from whistle-blowing reports as well as advice in respect of the management of complaints and/or the abuse of process. Why not contact us should you be having issues or be considering introducing a whistle-blowing hotline, the team and I would be able to assist you with our years of experience in this space and advise you accordingly sharing lessons learned from previous engagements. Let us help you through this rocky terrain and provide you with a steady hand in your process. Email me at grant@globalbusiness.co.za to get in touch. Our team can investigate, initiate, or chair disciplinary inquiry processes and assist with arbitrations flowing from these processes. We thank our clients for their continuous support and look forward to providing assistance going forward.
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