Whistle(blowing) While You Work

“The fostering of a culture of disclosure is a constitutional imperative as it is at the heart of the fundamental principles aimed at the achievement of a just society based on democratic values” (Labour Appeal Court, case below)

The “Whistle-blower’s Act” (more correctly the PDA or Protected Disclosures Act) encourages employees to disclose unlawful or irregular conduct by their employers or fellow employees (in both the public and private sectors), without fear of reprisal.

What the Act requires:

• The full requirements for protection as set out in the PDA are complex so it is essential to take specific legal advice, but in brief summary, the requirements for a “general protected disclosure” are -
• It must be made in “good faith”,
• The employee must reasonably believe that “the information disclosed and any allegation contained in it are substantially true”,
• The employee cannot  make the disclosure for personal gain, “excluding any reward payable in terms of any law”,
• “In all the circumstances of the case it [must be] reasonable to make the disclosure”.

The mining engineer who blew the whistle

A case recently before the Labour Appeal Court illustrates -

• An engineer employed by a mining operation as a “project superintendent” was, amongst other duties, responsible for maintaining health and safety standards,
• He was dismissed following a disciplinary hearing which found him guilty of failing to obey a reasonable instruction to return to work after a period of sick leave,
• A local newspaper published an article based on his media report to the effect that the mine had inadequate measures in place to address the water pollution that its mining operations had caused,
• The Court, finding on the facts that this disclosure was protected both in terms of the PDA and in terms of NEMA (the National Environmental Management Act), ordered retrospective re-instatement of the engineer with full back pay.

A twist: environmental risks

An interesting twist relevant to this case is that NEMA both -

• Imposes liabilities on “managers, agents and employees for environmental transgressions committed by their employers”, and
• Provides whistle-blowing protection to anyone (not just employees) for good faith disclosure of information on environmental risks “in the public interest and in the interest of protecting the environment”.  Again, specific requirements and procedures apply, so take full advice in each case.

The other side of the coin: Getting it wrong with Facebook

Next month we’ll look at another case where an employee’s dismissal was confirmed as fair after he used Facebook to make disclosures about health hazards in a hospital, but did so unreasonably and outside PDA’s requirements and procedures.

Bissets Boehmke McBlain Attorneys
20 October 2014