The Protected Disclosures Act 26 of 2000 (“the PDA”) came into effect with its main purpose to create a culture which will facilitate the disclosure of information by employees relating to criminal and other irregular conduct in the workplace in a responsible manner by providing guidelines for the disclosure of such information and protection against any reprisals as a result of such disclosures.
Many employees have been too scared to disclose knowledge regarding irregular conduct to their employers for fear of reprisal after disclosing same.
Many times, an employee who had taken part in group misconduct will “blow the whistle” and supply the employer with information which might fall within the scope of a protected disclosure if the disclosed information was made in good faith and the employee reasonably believes that the information disclosed is substantially true.
If so, the employer will use the information received from the whistleblower to investigate, charge and dismiss the individual or group of individuals who committed the misconduct.
An employer might be inclined to want to protect the “whistleblower” by not involving the whistleblower by excluding him or her from the list of witnesses to be called at a disciplinary hearing should the employer have enough evidence to discharge his burden of proof without having to call the individual to testify.
The employee might also be under the impression that his identity will be protected by the employer should he disclose certain information.
Employers should not confuse the information which is deemed to be a protected disclosure with the protection of the whistleblower’s anonymity. The PDA clearly states that no employee may be subjected to any occupational detriment by his or her employer on account of having made a protected disclosure.
Occupational detriment includes being subjected to any disciplinary action or being dismissed, suspended, demoted or harassed by the employer to name a few.
Therefore, the PDA protects the “whistleblower” by ensuring that a protected disclosure will not lead to the employer instituting disciplinary action against him or her. The protection provided by the PDA does not refer to protecting the identity of the “whistleblower”.
Section 4(3) of the PDA states that any employee who has made a protected disclosure:
- and who reasonably believes that he or she may be adversely affected on account of having made that disclosure, must,
- at his or her request and if reasonably possible or practicable,
- be transferred from the post or position occupied by him or her at the time of the disclosure to another post or position in the same division or another division of his or her employer.
It seems as if the only “protection” that the employer is required to provide against the possible wrath of co-workers or friends of co-workers who have been exposed by the whistleblower is by way of transferring the whistleblower from one post or position or division to another if he or she so requests and if possible.
The terms and conditions of employment of a person transferred in terms of Section 4(3) of the PDA may not be less favourable than the terms and conditions applicable to him or her immediately before the transfer.
Article by: Meghan Louw
Dispute Resolution Official – Port Elizabeth