The Protected Disclosures Act: How to advise

1. The Protected Disclosures Act:How to advise By Gabriella Razzano

2. Whistleblowing definition (a) Bringing an activity to a sharp conclusion as if by the blast of a whistle (Oxford English Dictionary);(b) Raising a concern about malpractice within an organisation or through an independent structure associated with it (UK Committee on Standards in Public Life); (c ) Giving information (usually to the authorities) about illegal or underhand practices (Chambers Dictionary); (d) Exposing to the press a malpractice or cover-up in a business or government office (US, Brewers Dictionary); (e) (origins) Police officer summoning public help to apprehend a criminal; referee stopping play after a foul in football.

3. Graphic from APS Journalists and whistleblowers: you are often the whistleblowers means for disclosing information.

4. Some whistleblowing cases

5. The costs of these scandals? • Lives lost & livelihoods destroyed • Millions in fines, compensation & insurance • Crisis management • Jobs lost & reputations ruined • Loss of confidence - public & investors • Increased regulation

6. The official inquiries into all these disasters showed that the staff had been aware of the danger before the accident but had either:(a) Been too scared to raise the alarm(b) Had raised the matter in the wrong way or with the wrong people

7. The State of Whistleblowing Globally • Wikileaks, but what of source protection? • Rise of whistleblowing-to-journalists facilities: Open Leaks, Green Hornet • Leaks and the future of journalism: “The task of aggregating and verifying multiple sources and data depends fundamentally on trust. Trust that the facts are accurate. Trust that appropriate weight has been given to context. And, make no mistake, ladies and gentleman, trust in the journalistic profession is a scarce commodity”. Lionel Barber

8. Department knew about death trap factory(Mail & Guardian, 24 Nov 2000)Witch-hunt for whistleblowers(Mail & Guardian, 15 Mar 2002)Minister on warpath after AIDS report leak(Star, 21 Mar 2002)Arms deal leak: who blew the whistle? (Mail & Guardian, 21 Mar 2002)Sex slaves, drugs and video tape (Star, 18 June 2002)Burn the evidence or your job’s on the line(Star, 20 June 2002) South African Headlines

9. The State of Whistleblowing in South Africa • 2011: 87,5% believe whistleblowers should be protected (20% increase) • 20% say they’d blow the whistle themselves • But violent responses have been reported: Moses Phakoewas murdered by Matthew Wolmarans for reportedly blowing the whistle.

10. Factors Inhibiting Whistleblowing • Nothing will be done I don’t want to be a sneak It’ll only cause trouble No-one else can be bothered? It’s only a suspicion Why not just keep quiet? Worried by mbtphoto (Flikr)

11. I’m worried about telling my manager: • What if I am required to prove it? • How far up does it go? • What if I am wrong?

12. Who? How? What will they do? What if I’m found out?

13. The Protected Disclosures Act 2000

14. Aims The law aims to provide a statutory framework which: • Reassures workers with genuine concerns that there is a safe alternative to silence • Promotes better accountability • Makes risk management an issue for all staff and managers • Helps everyone separate the message from the messenger

15. Applies to every employer and protects every employee Wide definition of wrongdoing Provides for financial (and other) compensation Covers malpractice or “impropriety” which occurs outside the Republic of South Africa Allows disclosures of impropriety to person other than employer Broad Application Image from The University of Iowa Libraries

16. Main Protection Detriment or dismissal automatically unfair If you are an employee that makes a protected disclosure, and you show the detriment you have experienced, this will be deemed to be automatically unfair.

17. Who’s an employee? (a) any person, excluding an independent contractor, who works for another person or for the State and who receives or is entitled to receive, any remuneration; (b) any other person who in any manner assists in carrying on or conducting the business of an employer. Service providers and independent contractors are not covered by the PDA. However, the definition is far broader under the new Companies Act section 159(4). In sub-section 4 of s159, the Companies Act extends the protections of the PDA to • a registered trade union that represents employees of the company or another representative of the employees of that company • a supplier of goods or services to a company Worker by Photo by AgusAndrianto/CIFOR on Flicker

18. A criminal offence or miscarriage of justice A failure to comply with any legal obligation A danger to health & safety or damage to the environment Unfair discrimination The likelihood that any of the above is, has or may occur Deliberately concealing any of the above What would constitute a disclosure?

19. Any disciplinary action - including dismissal, suspension, demotion, harassment or intimidation A transfer against the employee’s will Alteration of terms / conditions of employment to employee’s disadvantage... What is occupational detriment?

20. Refusal of transfer or promotion Refusal to provide reference or providing adverse reference Refusal of employment or appointment to office Threatening the employee with any of the above

21. Nobody’s perfect… • Protective scope too small • Only those whistleblowers who release within a formal employment relationship • excluding all persons in other commercial relationships with the relevant organisation such as customers, independent contractors • Range of recipients too narrow • SAHRC? • Public Services and Administration?

22. Issues with available remedies • Resolutions of disputes are court-based • The PDA provides no immunity against civil and criminal liability arising out of the disclosure; • There is no express obligation on organisations in terms of the PDA to protect a whistleblower’s identity; • The remedies that are available are insufficient e.g. damages are limited to those damages in the Labour Relations Act.

23. By lawnborghini on Flickr There are four main routes for legal protection….

24. The Four Doors to Legal Protection: Door 1 (Clause 5) To a legal adviser for the purpose of, or in the course of, obtaining legal advice. • Includes attorney, their shop steward or union organiser!

25. The Four Doors to Legal Protection: Door 2 (Clause 6) In good faith, to the employer - and / or using a procedure authorised by the employer, such as in a whistle-blowing policy...preferred first step

26. The Four Doors to Legal Protection: Door 3 (Clause 8) In good faith, to a specified regulatory body (includes Public Protector and Auditor General)

27. The Four Doors to Legal Protection: Door 4 (Clause 7, 9) Exceptionally serious? Fear of occupational detriment? Likely cover-up? Wider disclosure such as to the media, made in good faith and not for personal gain : it must be reasonable.

28. Practical advice What you need to know about general protected disclosures

29. The 4th door: Wider disclosure This protection applies where the whistle-blower honestly and reasonably believes that the information and any allegation contained in it are substantially true and that the disclosure is not made for personal gain. Crucially, to be protected there must also be a good cause for going outside and the particular disclosure must be reasonable.

30. A good cause? Concerns the act of going outside the organisation. The four good causes: • the concern was raised internally or with a prescribed regulator, but has not been properly addressed • the concern was not raised internally or with a prescribed regulator because the whistle-blower reasonably believed he or she would be victimised • the concern was not raised internally because the whistle-blower reasonably believed a cover-up was likely and there was no prescribed regulator, or • the concern was exceptionally serious.

31. Reasonableness? Concerns the disclosure itself. Possible factors include: • the identity of the person it was made to • the seriousness of the concern • whether the risk or danger remains • whether the disclosure breached a duty of confidence the employer owed a third party. • If raised with the employer or a prescribed regulator, the tribunal will also consider their response. It is not enough to have a whistle-blowing policy only – action taken must be appropriate. • Finally protection may be lost if the worker failed to comply with a whistle-blowing policy if available.

32. Recourse A victim can refer a dispute to the Commission for Conciliation, Mediation and Arbitration for conciliation and thereafter to the Labour Court. Dismissal = unfair dismissal Victimisation = unfair labour practice

33. Those dismissed for making a protected disclosure can claim either compensation, up to a maximum amount of two years salary, or reinstatement. Those who are disadvantaged in some other way as a result of making a protected disclosure can claim compensation or ask the court for any other appropriate order.

34. “Injustice anywhere is a threat to justice everywhere.”-Martin Luther King, Jr.