Protection of Whistleblowers
The Need For Whistleblowers
The issue of the protection of whistleblowers has become more prominent with the piles of evidence which have been presented to the Zondo Commission of enquiry about corruption, nepotism and straight out theft. If it were not for a few brave individuals who reported the problems in the beginning, it is unlikely that anything would have been exposed.
Consequences and Existing Protection
So the question must be asked: Apart from the moral satisfaction of exposing corruption, are the consequences too serious for most people to even contemplate even thinking of reporting wrongdoing? The answer has to be yes.
If you have dependents who are reliant on your salary for their survival, you cannot afford to lose your job. Does the law protect you? In theory, yes. In practice, no.
The Protected Disclosures Act 26 of 2000 theoretically protects an employee who reports wrongdoing. The problem comes with the mechanism that the employee has to rely on for protection and the potential remedies to protect the employee.
Let’s start with what happens when an employee reports fraud or theft by a fellow employee, especially their manager or someone higher up the line of authority. If they victimised, the Act says they should be moved to another position if possible (away from the person they reported). But what if the employee refuses and/or continues to victimise the employee?
They can take the legal route. This involves first approaching the CCMA for conciliation. In practice this means an enforced 30 days delay before instituting legal proceedings. The CCMA often schedules the conciliation hearing well into the 30 days and then at the hearing if the employer refuses to budge the conciliation fails. Nothing is achieved, other than time wasted. The employee then has to approach the Labour Court for relief. In theory this is an expeditious procedure, but in practice it is not (for an employee being victimised ‘expeditious’ means something different from the meaning given to it by the Labour Court process).
Assuming the employee can afford a lawyer, or has the emotional strength to pursue the case themselves, they will find that it will be several weeks before the matter is ripe for set down, and then it will probably not be heard less than a year later. In the meantime, the employee is still subject to victimisation.
It can be argued that the employee can approach the Labour Court on an urgent basis, but there is an inevitable hurdle to be faced in proving urgency. The employer merely needs to say that they never intended to take any action against the employee and there is no urgency. The employee has now wasted time and legal fees and is no better off.
Because an application for an interdict to afford the employee protection is not automatically treated as urgent, it wallows in the same pool as all the other cases with a wait for several months. The employer has no incentive to assist in speeding up the matter.
Employee Left Unprotected
In the meantime the employee is not protected. The employer can go so far as to take disciplinary action against the employee for taking them to court, claiming they are ‘incompatible’. The employee now faces a dilemma: do they back to court on an urgent basis to stop the disciplinary hearing?
It cannot be ignored that the Labour Court has repeatedly warned that it will consider costs orders against employees who try to prevent disciplinary hearings. The argument is that there is a remedy after the hearing if it is irregular, so that should be the correct avenue to take. Does the already victimised (and probably traumatised) employee want to run that risk.
Now the employee has been fired. In theory they are entitled to reinstatement if the employer cannot prove that the dismissal was fair. But, obviously, if they are alleging incompatibility they will be claiming that they cannot reinstate the employee. Even if they outright concede the merits, they can still argue that reinstatement is inappropriate because there is a breakdown in trust.
The alternate remedy is that the employee is given compensation for two years’ salary. (Dismissal in breach of the Protected Disclosures Act would be an automatically unfair dismissal.) That may sound attractive, except in practice it is not. If they employee is on the lower-income scale, two-years’ salary is not going to amount to much in a struggling economy where finding jobs is so difficult.
Also, the employee now has to institute additional proceedings in the Labour Court. The initial application for an interdict must now fail, as the employee is no longer employed and any protection would be moot. So the, by-now-bewildered, employee has to start the process all over again, waiting another year for a court date. It could easily take two years before the unfair dismissal case is finalised. That’s if the employer doesn’t appeal, as that will take anything from one to two years extra. In the meantime, living expenses and paying legal fees eat up the two-years’ salary as compensation.
Even if the case runs to trial, the employee still has the onus of proving the protected disclosures. This is relatively easy because the fact of having made the disclosure and what was disclosed are objective facts, but the onus is also on the employee to prove that she or he made the disclosure in good faith. That leaves the employee open to attack on absurd grounds because ‘good faith’ is difficult to prove.
Repercussions for Employer and Employee
The result is that the employee will have to take a settlement of two years salary as compensation when offered it by the employer, who otherwise escapes any repercussions for having fired the employee for reporting corruption. The employee is left without a job.
Need for Change for Effective Protection of Whistleblowers
That is why, unless there are fundamental changes to the system, it borders on reckless for any employee with dependents to be a whistleblower. The kinds of changes which will present the employee with meaningful protection of whistleblowers include deeming any application for protection in terms of the Protected Disclosures Act to be urgent as far as court proceedings are concerned.
The requirement of having to go via the CCMA for conciliation needs to be reassessed unless it is to take on a more meaningful roll. Currently it is only effective as a ‘cooling off’ period before Labour Court proceedings are instituted. The onus should also be on the employer to prove bad faith rather than the employee to prove good faith.
Once proceedings have been instituted in terms of the Protected Disclosures Act the employee should be protected until those proceedings are finalised (provided the employee prosecutes them expeditiously). This removes the incentive for the employer to drag them out as long as possible or to fire the employee in the meantime.
Without a complete relook at the Protected Disclosures Act, the divide between theory and practice will remain real and it will create a substantial disincentive for any employee to be a whistleblower.