Whistleblowers play a pivotal role in the fight against and the exposure of corruption, criminal activities and the infringement of human rights. Chief Justice, Raymond Zondo, has remarked that due to the important role played by whistleblowers, it is to be made “the highest priority that a bona fide whistleblower who reports wrongdoing should receive effective protection from [any and all forms of] retaliation.”

Cue the PDA

The Protected Disclosures Act, 2000 (the PDA) provides for such protection in the context of the workplace. In its essence, the PDA outlines procedures that are to be followed, as well as protection available to employees who disclose information regarding conduct by their employers or colleagues which is unlawful or irregular (this includes impropriety related to the failure to fulfil a legal obligation, health and safety risks, damage to the environment, or unfair discrimination). The PDA places certain obligations on employers to ensure that employees who “blow the whistle” are protected from any and all reprisals as a result of having done so.

Below, we outline three things every employer needs to know about their obligations under the PDA.

First: implement a whistleblowing policy

Every employer must ensure that there are appropriate internal procedures in place to deal with disclosures made by employees. These procedures are to be brought to the attention of and communicated to employees.

This can be achieved through the implementation of a whistleblowing company policy together with training initiatives. This policy will help foster an environment within which employers will feel encouraged to “blow the whistle” on any conduct that is corrupt, illegal or unethical.

The policy is to set out: the types of conduct that should be reported, steps to be taken in reporting such conduct, guidance on the specific information to be provided when making the disclosure and the procedure for addressing the disclosure.

Second: protect your whistleblowers

Every employer has an obligation to protect employees from any occupational detriment as a result of them having made a protected disclosure.

Occupational detriment includes but is not limited to: disciplinary action (including dismissal), suspension, refusal of promotion or the granting of a demotion, harassment or intimidation, being subject to a civil claim for breach of confidentiality and the denial of a reference or the provision of an adverse reference.

Third: communicate and investigate or refer

The employer is to acknowledge receipt of the disclosure in writing.

After receipt of the disclosure, an employer has a period of 21 days to decide whether to investigate the disclosure or to refer the disclosure to another appropriate body for investigation.

Once a decision has been made, an employer is to inform the employee of their decision.

Where an employer decides not to investigate, they are to provide the employee with reasons as to why he or she has decided against the investigation.

Where an employer decides to go ahead with an investigation, a time frame of such investigation is to be communicated to the employee. The outcome of the investigation is to be communicated to the employee.

Anticipate developments

It is important to note that following the recommendations arising out of the Zondo Commission, the legislative landscape is expected to change drastically. The Department of Justice and Constitutional Development has published proposed extensive legislative reforms aimed to encourage whistleblowing and address corruption and other impropriety. These proposed changes expand the scope of protection of whistleblowers (beyond the employer-employee relationship) and broaden the definition of impropriety which can be reported.

This blog was co-authored by Thato Maitin, Candidate Attorney.