Protecting the whistleblower

• Main Author: Schmidt, Hendrik C.
• Published: 2012
• Subjects: Whistle blowing; Labor laws and legislation.
• Online Access: http://hdl.handle.net/10210/6022

M.Phil. === Whistleblowers have become known as being disloyal employees and troublemakers. This perception has caused whistle blowing to be despised rather than encouraged. Whistle blowing is effectively raising a concern about an impropriety that assists in ensuring individual responsibility and organisational accountability. Making disclosures causes employees to be victimised by their employers as well as fellow employees. Employees generally did not feel protected enough to come forward with information on corruption, even though the witness protection system had been reformed and was working well. A well functioning hotline system is of importance and should be linked to the implementation of a protection regime for whistle blowers. Employees making anonymous disclosures are difficult to investigate, in that problems in corroborating the information as well as in not being able to remedy the underlying cause of the disclosure exist. Hotlines through which the public and employees anonymously report suspected corruption does not satisfactory deal with the issues when the purpose of whistle blowing is to promote a culture of transparency and accountability. The aim is to provide provisions for employees to disclose information about suspected criminals or other irregular conduct without fear or reprisals. The Protected Disclosures Act is an important step in providing protection for those who expose corruption in the workplace. Employers and employees should be treated on an equal basis with regards to whistle blowing. It is in the best interest of both employees and employers to have internal channels that encourage protected disclosures, providing protection to both employers and employees. Different measures exist to protect whistleblowers. One such measure is by means of legislation. Secondly, courts have also developed principles in this regard. However, in certain instances, the labour law will not provide protection were a professional individual acts in breach of the confidentiality obligation vested upon him within the client professional relationship. Legislation relating to general protection such as the right to freedom of association and access to information, also provide protection. The codes of conduct and ethical rules of professional bodies can also be adapted to provide protection to professionals, including employment contracts that provide for protection in certain instances. Despite all of the above, instances will always arise where tensions exist and problems arise, such as the continuous tension between the monopoly of the state in respect of certain information and the question on which information should be protected under legislation. It is therefore clear that many instances arise where protection is not afforded to whistleblowers. To apply the protection afforded by the Protected Disclosure Act horizontally between private bodies, private bodies should be protected from detriment. A tax consultant aware that a client is defrauding the South African Revenue Service will fear that if it challenges the client or threatens to report the fraud, the client will cancel the contract. It is recommended that a more inclusive approach to employment is to be followed as "atypical" employment is on the increase in South Africa as in many other countries. Homework, where a person undertakes to work on contract from home as well as workers supplied by temporary employment services, enable the organisations to vary the number of workers deployed so as to ensure flexibility. Independent contractors are often in a good position to uncover and disclose irregular conduct in the private or public sector. In addition, it is also advised that applicants for employment in the definition of an employee in the Protected Disclosures Act be included. In order to protect whistle blowers further, the definition of occupational detriment in the above act should also be extended to include reprisal by employers such as the use or treat to use defamation suites and suites based on the alleged breach of confidentiality, a loss of a contract or the inexplicable failure to be given a contract in the instance of contract workers. In addition, the list of forms of occupational detriment to be suffered should be left open ended to allow recognition of further types of victimisation. The effectiveness of measures put in place within organisations to encourage employees to speak out against impropriety and misconduct will be difficult to determine as only when there has been non-adherence to the Protected Disclosures Act and the whistle blower has been detrimentally affected, will it come into force to protect bona fide whistleblowers.