by Abrie Bronkhorst
Whistleblowing plays a vital role in both public and private organisations. It is defined as the exposing or divulging of information regarding wrongdoing within an organisation. This refers to information on any activity that is deemed illegal, unethical, or not correct within private, public or third-sector organisations.
The Protection Disclosure Act (“PDA”) came into effect in February 2001 and protects whistleblowers in both the private and public sector. This encourages a philosophy of transparency, to fight illegal activities and to create a culture of good governance. In order to be protected by the PDA, a whisteblower must comply with certain requirements. Should these requirements not be met, the whistleblower may be open to legal and/or disciplinary action. These necessary requirements are as follows:
- acting in good faith;
- the exposure of information may not be made for personal gain; and
- there needs to be significant reason to believe that the information is accurate and true
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The employment relationship is essentially built on trust and part of an employee’s legal duties include the fiduciary duty to always act in good faith, be loyal and to have the employer’s best interests at heart. This also includes the employee’s duty to report any dishonest conduct of co-workers. When an employee is not guilty of an offence, but was aware of the misconduct and did not report it to the employer, the employee violated the trust relationship and can the employer take disciplinary action against such an employee.
Typical misconduct in the workplace that can lead to whistleblowing include theft, fraud, moonlighting, alcohol or drug abuse, the divulging or supplying of confidential information and misuse of the employer’s property. We advise employers to implement a whistleblowing policy to encourage employees to divulge illegal, dishonest or irregular conduct of co-workers. Such a policy can also promote a greater sense of accountability in the workplace.
There should also be a clear procedure for employees who become aware of a co-worker’s misconduct, to follow in order to report such misconduct by blowing the whistle. This procedure should have a clear reporting structure and turnaround times. Employees must also be informed of the protection awarded to whistleblowing employees. An employer may not discipline, demote, transfer, harass or dismiss an employee without cause where the employee has made a protected disclosure, as this action is likely to relate to the protected disclosure. However, disclosure by an employee of his own illegal activities will not be regarded as a protected disclosure and will disciplinary action be justified in such a case.
It is important that employers inform employees of their fiduciary duty and the position of trust they are employed in. In most cases regarding the breach of confidentiality and trust, dismissal as a sanction is appropriate as it impacts directly on the root of the employment relationship that binds an employee to act in good faith and to further the employer’s interests. This misconduct can negatively impact the employment relationship, rendering trust irreconcilable.
It is the employer’s obligation to ensure a safe and secure working environment free from harassment and intimidation. Regular communication is vital in the workplace. Meetings with employees, individually or in a group, will create a platform for employees to voice their thoughts and ideas, as well as to discuss any specific needs. Labour legislation is applicable to all employers and employees and aims to regulate labour relations ensuring fairness in the workplace. Not following the correct procedures can lead to dire consequences with a huge financial impact for the employer.
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