The new public protector says she will leave the dispute over the state capture report prepared by h.
The Protected Disclosures Act was enacted in order to protect whistleblowers and promote a culture of transparency within the workplace. The act aims to strike a balance between freedom of speech within the workplace and the protection of the employer or employee's reputation against whom the allegations are made.
A whistleblower is an informant, most often an employee, who reports an employer's misconduct. The Labour Relations Act (LRA) has been amended to increase the protection given to the whistleblower. The LRA has been amended to include an "occupational detriment" as an unfair labour practice in terms of section 186(2)(d). The definition of an "occupational detriment" includes "being subject to" disciplinary action, being dismissed, suspended, demoted, harassed or intimidated.
The act does not provide unconditional protection to the "whistleblower". Protection is limited to disclosures that fall within the definition of disclosure.
The act defines a disclosure as "a disclosure of information regarding any conduct of an employer, or an employee of that employer, made by any employee who has reason to believe that the information concerned tends to show that a criminal offence has been committed or that a person has failed to comply with any legal obligation".
The Labour Court has stated that disclosure must be supported by fact and made in good faith. The employee is required to show that he/she genuinely believed in the facts disclosed, whether true or not, and that such a belief was reasonable.
In the Mobile Telephone Networks case the employee accused the company of preferring a particular employment agency and prepared a lengthy memorandum and circulated it through out the company's e-mail network. The employee was suspended and provided with a long list of charges. The employee then launched an urgent interdict against the proposed disciplinary hearing.
On the return date, the court again reiterated the limited application of the act and held that the act is applicable to disclosures that tend to show a criminal offence or failure to comply with a legal obligation.
A distinction is made between an employee who makes a disclosure in terms of the act and an employee who makes a disclosure outside of the parameters of the act. In the latter case the employee is not exempt from disciplinary action. The dismissal of such an employee entails a fact-based enquiry and depends on the circumstan-ces of each case. The failure of an employee to re-port serious misconduct constitutes an of-fence by the employee.
l Lavery Modise is a director at Routledge Modise Attorneys and was helped by Sibongile Mashinini, a candidate attorney at Routledge Modise Attorneys.