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THE SCOPE OF THE INVESTIGATION

2.1 The objects of the PDA have been discussed above. The core provision of the PDA is section 3, which provides that no employee may be subjected to any occupational detriment by his or her employer on account, or partly on account, of having made a protected disclosure. A disclosure is defined to mean 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, any one or more of the following:

• that a criminal offence has been committed, is being committed or is likely to be committed;
• that a person has failed, is failing, or is likely to fail to comply with any legal obligation;
• that a miscarriage of justice has occurred, is occurring or is likely to occur;
• that the health or safety of an individual has been, is being or is likely to be endangered;
• that the environment has been, is being or is likely to be damaged;
• that unfair discrimination as contemplated in the Promotion of Equality and Unfair Discrimination Act 4 of 2000 is taking place; and
• that any of the matters referred to above has been, is being or is likely to be deliberately concealed.

2.2 A disclosure is protected only if it has been made in accordance with the provisions of the PDA. Specific categories of persons to whom protected disclosures may be made are identified in the PDA. They include a legal practitioner (where the disclosure is made while obtaining legal advice), employers, members of the Cabinet or an Executive Council of a province, and certain investigative bodies such as the Public Protector and the Auditor-General. There is also a general category of protected disclosures.

2.3 Disclosures other than those to a legal adviser are protected only if made in good faith. This seems to imply a belief in the truth of the information disclosed. In the case of disclosures to investigative bodies and general protected disclosures, the PDA also requires a reasonable belief in the truth of the information disclosed. Additional requirements are laid down in the case of a general protected disclosure in that the disclosure must not be made for the purposes of personal gain; it must in all the circumstances be reasonable to make the disclosure; and one or more special conditions must apply.

2.4 The PDA defines occupational detriment, in relation to the working environment of an employee, to mean:

• being subjected to any disciplinary action;
• being dismissed, suspended, demoted, harassed or intimidated;
• being transferred against his or her will;
• being refused transfer or promotion;
• being subjected to a term or condition of employment or retirement which is altered or kept altered to his or her disadvantage;
• being refused a reference, or being provided with an adverse reference, from his or her employer;
• being denied appointment on any employment, profession or office;
• being threatened with any of the actions referred to above; or
• being otherwise adversely affected in respect of his or her employment, profession or office, including employment opportunities and work security.

2.5 The PDA provides for remedies where an employee has been, is being or may be subjected to an occupational detriment in breach of the Act. Two of these are very general, entailing 'appropriate relief' from a court having jurisdiction, including the Labour Court, and the pursuit of 'any other process allowed or prescribed by any law'. The PDA also deems a dismissal and an occupational detriment in breach of the Act to be an unfair dismissal and an unfair labour practice, respectively, in terms of the Labour Relations Act 66 of 1995. Finally, the PDA provides for an employee to request a transfer to another division where he or she reasonably believes that a disclosure will affect him or her adversely.

2.6 The PDA further states that any provision in a contract of employment, or in any other agreement between an employer and employee, will be void in so far as it attempts to exclude any provision of the PDA, or attempts to preclude an employee from making a protected disclosure.

2.7 The provisions described above are confined to the relationship between employer and employee in the public and private sectors. They do not, for example, provide protection to an independent contractor. Further, whistle blowers who intend using the provisions of the PDA to conceal their own involvement in criminal activities are not protected. Where a law has been contravened, the PDA does not protect the employee from criminal prosecution or civil liability to third parties.

2.8 The present investigation is concerned with the possibility of extending the ambit of the PDA. Extension beyond the purview of the employer/employee relationship is one of the main issues to be investigated. The Commission is consequently considering proposals for possible law reform with regard to the following issues:

• whether a person should be able to make a protected disclosure relating to the conduct of a person other than his or her employer or a fellow employee;
• whether it is advisable to exclude criminal or civil liability for making a protected disclosure;
• whether it is advisable to provide for a new cause of action for an employee who has been victimised by an employer in contravention of the Act;
• whether such remedy should be aimed at the person who acted in contravention of the Act, or at both the employer and such person, and whether it should introduce the concept of punitive damages into our law;
• whether offences should be created within the Act in terms of which:

(a) an employer would be committing an offence by unlawfully subjecting an employee to an occupational detriment;

(b) an employee would be committing an offence by making a false disclosure not knowing or believing it to be true.

2.9 The issues raised need to be debated thoroughly. The comments of all parties who are interested in these issues are therefore of vital importance to the Commission. It would be appreciated if respondents would read through the following paragraphs and answer the questions posed in each case as fully as possible. Respondents are free to raise other issues that are not included in the purview of the questions posed.