ZALC - Issue Paper 20 (Project 123): Protected Disclosures

It is possible to conceive of a number of scenarios which do not form part of the employer/employee relationship but where protection in terms of the Protected Disclosures Act 26 of 2000 (the PDA) might be desirable. One example put by the Portfolio Committee on Justice and Constitutional Development is the case of an individual who makes a disclosure concerning the corrupt activities of an insurance salesperson, and who is then denied insurance coverage by that or another insurance company. This scenario entails no employer/employee relationship, but ought perhaps to be brought under the protection of the PDA if the Act is to fulfil its role in helping to curb corruption.

A study conducted by the Institute of Security Studies confirms the importance attached to whistle blowing as an effective tool in the fight against corruption. By extending the protection afforded by the PDA, whistle blowing could potentially be used by a wide range of people.

Comparative study shows that some foreign jurisdictions have provisions in terms of which an employee can make a protected disclosure relating to the conduct of a person other than the employer or a fellow employee. For example, section 43C of the British Public Interest Disclosure Act of 1998 provides:

'(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith–

(b) where the worker reasonably believes that the relevant failure relates solely or mainly to–

(ii) any other matter for which a person other than his employer has legal responsibility,

(2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.'

However, the extension beyond the current ambit of the PDA would require definition of the various types of victimisation to which persons who are not in an employer/employee relationship may be subjected as a result of making certain disclosures.

Question 1:

1.1 Do you regard the extension of the ambit of the PDA beyond the purview of the employer/employee relationship as necessary or desirable?

1.2 What are the various types of victimisation that need to be included in the PDA?

NB: If you support the extension of the PDA beyond the employer/employee relationship, please indicate when answering question 2, 3 and 4 below what your views are in relation to persons other than employers and employees.

2. EXCLUSION OF CIVIL OR CRIMINAL LIABILITY FOR MAKING A PROTECTED DISCLOSURE

The PDA was enacted with a view to creating a culture in which employees may in a responsible manner disclose information concerning criminal and other irregular conduct in the workplace, and generally promoting the eradication of crime and misconduct in organs of state and private bodies. But without clear exclusion of criminal or civil liability where employees would otherwise be held liable, it is questionable whether the aim of the PDA will be achieved in an effective manner.

Other jurisdictions, such as New Zealand, allow for the exclusion of criminal and civil liability in their protected disclosures legislation. Exclusion of liability is widely regarded as a valuable tool in facilitating disclosures and the subsequent investigation of matters.

Question 2:

2.1 Would it be in the best interests of the public to exclude criminal or civil liability of whistle blowers in the PDA so as to encourage disclosures? Could this have the effect of frustrating the intention of the legislature in respect of certain statutory offences?

2.2 Would the exclusion of liability amount to a denial of the constitutional right to the adjudication of justiciable disputes in a court of law or other independent tribunal?

3. NEW REMEDY

The PDA may be contravened in the sense that an employee may well be victimised or otherwise subjected to occupational detriments after having made a disclosure. The PDA sets out various remedies for an employee who has been, is being or may be subjected to an occupational detriment.

Question 3:

3.1 Should the PDA provide a further remedy or remedies where an employee has in fact been victimised for making a disclosure?

3.2 Should such remedy lie against the person who actually acted in contravention of the PDA, or both that person and the employer?

3.3 Should such a remedy entail the payment of punitive damages?

3.4 Do the existing procedures and remedies set out in the Labour Relations Act, such as internal hearings and arbitration by the Commission for Conciliation, Mediation and Arbitration (CCMA), already cater sufficiently for cases of victimisation by an employer or another person?

3.5 If so, would the creation of a new cause of action in terms of the PDA bring about the development of a dual system which could create legal uncertainty and detrimentally affect the administration of sound labour practices?

4. CREATION OF OFFENCES WITHIN THE ACT

A noteworthy feature of the PDA is that while its protection generally extends only to disclosures made in good faith, it does not punish disclosures made in bad faith; and further, it does not make it a criminal offence for an employer to subject an employee to an occupational detriment.

Question 4:

4.1 Should it be a criminal offence for an employer unlawfully to subject an employee to an occupational detriment?

4.2 Should it be a criminal offence for an employee to make a false disclosure while not knowing or believing it to be true?

4.3 How would the creation of these offences within the PDA impact on the existing laws and practices that regulate relations between employers and employees?

South African Law Commission

QUESTIONNAIRE

1. PROTECTED DISCLOSURE RELATING TO THE CONDUCT OF A PERSON OTHER THAN THE EMPLOYER

2. EXCLUSION OF CIVIL OR CRIMINAL LIABILITY FOR MAKING A PROTECTED DISCLOSURE

3. NEW REMEDY

4. CREATION OF OFFENCES WITHIN THE ACT