The efficacy of Protected Disclosure Act under scrutiny
The Public Protector has entered the fray on the efficacy of the act by threatening to instruct SAA to reinstate suspended employees.
Public Protector Advocate Busisiwe Mkhwebane. Picture: Jacques Nelles
The Protected Disclosure Act has been in the news recently for its perceived inability to protect those reporting acts of financial misconduct at work against their superiors. Mainly because it appears to fail to protect them.
Recently the former company secretary of Johannesburg Roads Agency (JRA) made a protected closure to the Group Forensic and Investigative Services (GFIS) headed by former Hawks Gauteng boss General Shadrack Sibiya. The company used the very fact that she made a protected disclosure against employer’s wishes to suspend her.
South African Airways (SAA) also suspended a group of employees who blew a lid on allegations of financial impropriety. The legally vexed matter saw the the Public Protector, Advocate Busisiwe Mkhwebane, inform SAA chairperson Dudu Myeni that in terms of the law she has the authority to reverse the suspension of the employees.
Just this week, SARS commissioners Tom Moyane was also accused of undermining the basic tenets of the act in a matter involving an employee who made similar disclosure to the Hawks alleging wrongdoing at the revenue collector.
Promulgated into law by the former state president Thabo Mkebi in 2001, the act protects employees who feel they will be unfairly treated if they use normal work channels for reporting illegal acts by their employer a channel to report misconduct
According to Forensics for Justice, an NGO working in the area of corruption eradication, “an employee that abuses the act, for the purpose of revenge, for example against a boss, and then uses the act to shield unlawful conduct, could not expect to be ‘protected’.”
READ MORE: JRA chair accused of irregular conduct by company secretary
On the three cases currently raging, the organisation believes, on “prima facie grounds”, there seems to be a breach of the act – which would then amount to automatic unfair dismissal. It also believes the Public Protector is correct in intervening in instructing SAA to reinstate the suspended employees.
Founder Paul O’Sullivan is convinced that “Tom Moyane is acting unlawfully and the employee should enjoy protection, in terms of the act”. He cautioned, however, that the “system” is pretty much loaded in favour of a ruthless employer. He says where the employer is a state entity or company, they have access to “buckets of public funds” for litigation.
Labour law specialists Johan Botes and Lauren Salt of Baker & McKenzie explained that once an employee decides to “blow the whistle”, they can make the disclosure through their legal representative; the employer; a minister of MEC; a specified person or body or any other person under certain circumstances.
In seven instances of case law, the courts agreed that the disclosure should be “made in good faith”. If this criterion is satisfied, Botes and Salt argue that “no employee may be subjected to to any occupational detriment by their employer”.
Occupational detriment entails subjecting the whistle-blower to a disciplinary action; dimissal, suspensions, demotion, harassment or intimidation; transferring the employee against their will or refusal for promotion and other acts of depriving employees of a conductive working environment.
Roderick Davids, an official at the Public Service Commission responsible for National Anti-Corruption Forum secretariat, expressed optimism that the mooted amendments to the act will address some of the deficiencies.
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