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Employees Who Blow The Whistle Are Protected

BY   Ivan
Israelstam, Chief Executive of Labour Law Management Consulting. He may be
contacted on (011) 888-7944 or 0828522973 or via e-mail address: ivan@labourlawadvice.co.za.

The Protected Disclosures Act no.
26 of 2000 (PDA) protects employees from reprisals as a result of having blown
the whistle on the employer. This applies whether the disclosure in question is
made to authorities within or outside of the company/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.
Therefore, while the PDA encourages genuine disclosures it requires the
employee, when making an external disclosure, to at least hold a genuine belief
that the employer has acted wrongly.

Whistle blowing employees are
also protected by sections 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 short of dismissal resulting in “an occupational
detriment” to an employee who has made a protected disclosure as per the PDA.
The maximum compensation awarded to an employee successful in such a claim
would be 12 months’ remuneration.

The latter section of the LRA
makes it automatically unfair for an employer to dismiss an employee for having
made a disclosure protected in terms of the PDA. While few such cases have been
reported in labour law it appears that the courts are trying to look after the
interests of both employers and employees.

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 a disclosure for purposes of the PDA. The
Court therefore refused to assist the employee.

In the case of City of Tshwane
Metropolitan Municipality vs Engineering Council of SA & another (2010, 3
BLLR 229) The municipality’s management rejected the job applications of white applicants
chosen by the municipality’s selection panel. Management’s rejection of the
white applicants was on the grounds that the posts were to be given to black
applicants despite the fact that those black people who applied all failed an
approved test.  The managing engineer
objected to the management’s decision to appoint the candidates who had failed
the test and sent a letter to this effect to his superiors and then to the
Department of Labour. He expressed his concern that the appointees who had
failed were not qualified to do dangerous electrical work.

In response to this the
management disciplined the managing engineer and found him guilty of distributing
his objection letters without due permission. He applied to court for an
interdict against any form of sanction being implemented by the municipality. The
Supreme Court of Appeal later found that the employer was not entitled to
discipline the employee who had blown the whistle and ordered the employer to
pay the employee’s legal costs.

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 on page 1
that the Minister of Justice as well as a then deputy director-general of
Justice were taken to the Labour Court for removing Tshishonga after he exposed
alleged corruption in the liquidation industry and alleged nepotism on the part
of the Minister of Justice. According to The Sunday Times’s report theCourt
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.

To buy our e-book WALKING THE NEW
LABOUR LAW TIGHTROPE please contact Ivan via ivan@labourlawadvice.co.za or
0828522973.

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