LABOUR COURT PROTECTION FOR WHISTLEBLOWERS

This is the post that should have been done on Friday 7th Spetember.

Well, well, well - it seems that there may well be justice of sorts in this country!

So Mr Employee, if you are doing funny things, like not paying VAT or not paying staff PAYE etc, don't count on your staff not to blow the whistle on you. Don't think that you can take it out on them either.

Trust me, it's a lot less stressful and painful just to pay your taxes and be compliant and above board!


Labour court protection for whistleblowers
There are acts which prevent victimisation over disclosure
Ivan Israelstam

15 January 2007 at 06h00

Not even cabinet ministers are immune from prosecution for victimising whistleblowers.The Protected Disclosures Act no 26 of 2000 (PDA) protects employees from reprisals as a result of having blown the whistle on their employer. This applies whether the disclosure in question is made to authorities within or outside of the company/organisation concerned.

Under the PDA both employees and employers are protected. That is, employees are protected from reprisals when making disclosures in good faith and employers are, to a limited extent, protected from employees who make unfounded and malicious disclosures. Therefore, while the PDA encourages genuine disclosures it requires the employee, when making an external disclosure, to at least hold a genuine belief that the employer has acted wrongly.

Whistle-blowing employees are also protected by sections 186(2)(d) and 187(1)(h) of the Labour Relations Act (LRA). The former section classifies as an "unfair labour practice" any employer conduct short of dismissal, resulting in "an occupational detriment" to an employee who has made a protected disclosure as per the PDA. The maximum compensation awarded to an employee successful in such a claim would be 12 months' remuneration. The latter section of the LRA makes it automatically unfair for an employer to dismiss an employee for having made a disclosure protected in terms of the PDA.

While few such cases have been reported, it appears that the courts are trying to look after the interests of both employers and employees. In Global Technology Business Intelligence (Pty) Ltd vs CCMA and others (2005, 5 BLLR 487) the Labour Court found that the employee's report to his lawyer of alleged unfair discipline did not fall under the definition of a disclosure for purposes of the PDA. The Court refused to assist the employee.

However, in the case of Grieve v Denel (Pty) Ltd (2003, 4 BLLR 366) an employee was suspended and notified of a disciplinary hearing while he was preparing to report alleged wrongdoings of the general manager. The employee alleged that, when the employer discovered that the employee had obtained certain information, it took disciplinary action against him. Grieve applied to the Labour Court for an urgent interdict against the disciplinary hearing. The court found that:

There was enough evidence to show that the disclosure the employee wished to make had some substance.

Discipline does fall under the heading of occupational detriment.

The court upheld Grieve's application for the interdict.

In a 2006 case the Minister of Justice is reported to have been taken to the Labour Court for removing Mike Tshishonga, a former deputy director-general, from office after Tshishonga had blown the whistle on the ministry. The Sunday Times of January 7 reported that the Minister of Justice as well as a then deputy director-general of justice, were taken to the Labour Court for removing Tshishonga after he exposed alleged corruption in the liquidation industry and alleged nepotism on the part of the Minister of Justice.

According to the report the court found that:

Tshishonga had been sidelined after refusing to appoint a friend of the justice minister.

He was later axed after making public disclosures. The fact that the minister and the former director-general had failed to testify in court aggravated the claim made against them

It was not right that the Public Protector, Auditor-General and Minister in the Presidency had failed to probe the allegations

The dismissal of Tshishonga was "vicious", and

The Justice Department was required to pay Tshishonga 12 months' salary in compensation as well as his legal costs. In view of the above, employers are advised to tread very carefully before acting against any employee who makes allegations involving employer wrongdoing.

Ivan Israelstam is chief executive of Labour Law Management Consulting.

Contact him on 082-852-2973 or labourlaw@absamail.co.za

To book for a seminar on new changes and dangers in labour law phone Lee on 011-787-5445.