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QUESTIONS FOR CONSIDERATION

(See the questionnaire on the issue paper for further details)

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.

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?

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?

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

1. 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?

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?