South Africa: Impact Of The Guidelines To The Protected Disclosures Act On Employers

The Protected Disclosures Act No. 26 of 2000 (the act) became operative on 16 February 2001. It outlines procedures for employees to disclose information pertaining to irregular or criminal conduct committed by either their employers or another employee. The act also provides a number of safeguards to protect employees who decide to make disclosures.

Section 10(4)(a) of the act allows for the minister of justice and constitutional development to issue practical guidelines to employees explaining the provisions of the act and highlighting all procedures available to employees who wish to disclose information. Such guidelines were published on 31 August 2011.

The guidelines serve as an informative summary of the State's views on the implementation of the act. Although primarily directed towards employees, both the guidelines and the act have significant implications for employers as well.

Implications of the guidelines for employers

The guidelines make it clear that, "every employer has a responsibility to take all necessary steps to ensure that employees who disclose [protected] information are protected from any reprisals as a result of such disclosure". This responsibility can be indirectly enforced through a number of the provisions in the act, for example prevention of dismissal.

As such, the act and guidelines are clear that no employee may be, "victimised or penalised by his or her employer as a direct or indirect result of having made a disclosure in accordance with any of the procedures provided for in the act".

To the extent that the employer victimises an employee, he or she is entitled to the remedies available under section 4 of the act. An employee may approach any court which has jurisdiction, or follow any other procedure available in law, to enforce those remedies. In this regard, the guidelines highlight a number of other pieces of legislation which offer protection and means for disclosing such conduct.

The employee also has recourse under the Labour Relations Act, No. 66 of 1995 (the LRA). Importantly, the LRA provides that an occupational detriment, other than dismissal, in contravention of the act will constitute an unfair labour practice. Furthermore, the LRA provides that a dismissal will be automatically unfair if the reason for the dismissal is that the employee made a protected disclosure under the auspices of the act. Signifi cantly, the LRA also provides for a higher limit on compensation for automatically unfair dismissals namely, a maximum of 24 months' remuneration as compensation.

One of the ways in which an employee may make a protected disclosure is by approaching an employer directly. An employee must act in good faith when making such a disclosure in order for it to be protected. The act does not require the employer to provide a specifi c procedure in this regard. However, if the employer does institute a specifi c procedure regarding disclosures, then the employee is obliged to follow it when making a disclosure to ensure it is a protected disclosure. This offers a control mechanism to employers.

The act also allows employers to designate independent parties to whom disclosures may be made. Thus the establishment of anti-corruption hotlines by employers refl ects well on them as they are seen to be actively complying with the ethos of the act. In terms of the act an employer and employee cannot contract out of the act.

In addition, an employer cannot include any terms which have the effect of discouraging an employee from making disclosures in his or her contract of employment. To this extent an employer cannot escape the responsibility of taking all necessary steps to protect employees. To ensure compliance in this regard an employer should be seen to be promoting internal awareness about the act's provisions as well as company procedures for making protected disclosures.

The act also states that the State must provide a copy of the guidelines to every employee. It is suggested that private sector employers also take this step.

Conclusion

It is clear that, although primarily directed at employees, the act has signifi cant implications for employers.

In particular, it: curtails an employer's ability to circumvent the act; discourages employers from pressurising any employee it suspects of making disclosures; and prevents an employer from dismissing an employee for making protected disclosures.

Furthermore, it places a general duty on employers to provide protection to employees who make such disclosures. Given the objectives of the act this should be seen as a positive development, one that should be encouraged and adhered to by employers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.