1. The Protected Disclosures
Act:
How to advise
By Gabriella Razzano
Middelburg: 19 October

2. Introductions
3 words: what are your interests
for the next 2 days?

3. ODAC is a specialist law
centre working in the areas of
access to information, open
data and whistle blowing.
We provide legal advice and
We also provide training on
support to access public and
effective implementation of
private information through
PAIA, the PDA and open data
the Promotion of Access to
issues.
Information Act (PAIA).
We support and provide legal
advice to bona fide
whistleblowers using the
Protected Disclosures Act
(PDA).

4. Whistle-blowing:
(a) Bringing an activity to a sharp conclusion as if by the blast of a
whistle (Oxford English Dictionary); (b) Raising a concern about
malpractice within an organisation or through an independent
structure associated with it (UK Committee on Standards in Public
Life); (c ) Giving information (usually to the authorities) about illegal or
underhand practices (Chambers Dictionary); (d) Exposing to the
press a malpractice or cover-up in a business or government office
(US, Brewers Dictionary); (e) (origins) Police officer summoning
public help to apprehend a criminal; referee stopping play after a foul
in football.

5. Graphic from APS
Journalists and whistleblowers = you are
often the whistleblowers means for disclosing
information.

7. Costs and similarities?
Lives lost & livelihoods destroyed
Millions in fines, compensation & insurance
Crisis management
Jobs lost & reputations ruined
Loss of confidence - public & investors
Increased regulation

8. Circumstances ? Tragedy
The official inquiries into all these disasters showed that
the staff had been aware of the danger before the
accident but had either:
(a) Been too scared to raise the alarm
(b) Had raised the matter in the wrong way or with the wrong
people

9. Department knew about death trap factory
(Mail & Guardian, 24 Nov 2000)
Witch-hunt for whistleblowers
(Mail & Guardian, 15 Mar 2002)
Minister on warpath after AIDS report leak
(Star, 21 Mar 2002)
Arms deal leak: who blew the whistle?
(Mail & Guardian, 21 Mar 2002)
Culture of silence keeps sodomy under wraps
(IOL, 18 June 2002)
Sex slaves, drugs and video tape
(Star, 18 June 2002)
Burn the evidence or your job’s on the line
(Star, 20 June 2002)

10. Enron, WorldCom, Tyco
Phar-Mor, Regal, Barrings, Beige
Leisurenet, Lenasia, Groetvlei, ZZZZ Best,
(and all the rest)
The question is, whose next?
©ODAC 2001
www.opendemocracy.org.za

11. Globally
• Wikileaks…but what of source protection?
• Rise of whistleblowing-to-journalists facilities e.g.
Open Leaks, Green Hornet
• Leaks and the future of journalism:
“The task of aggregating and verifying multiple
sources and data depends fundamentally on trust.
Trust that the facts are accurate. Trust that
appropriate weight has been given to context. And,
make no mistake, ladies and gentleman, trust in
the journalistic profession is a scarce commodity”.
Lionel Barber
• Actually about journalism and rise of internet.

12. No-one else can be bothered?
Nothing will be done I don‟t want to be a sneak
It‟ll only cause trouble
It‟s only a suspicion
Why not just keep
quiet?
Worried by mbtphoto (Flikr)

13. I’m worried about telling
my manager:
• What if I am required to
prove it?
• How far up does it go?
• What if I am wrong?

14. Who?
How?
What will they do?
What if I‟m found
out?

15. Break into groups of 4 or 5
For report back, list 3 key reasons
you have seen in your environment
which might mean people won‟t blow
the whistle?

16. The South African experience
Transition to democratic rule characterised by
High levels of crime - including widespread
corruption
Whistleblowers viewed as ‘impimpis’ or informants
Leading to initiatives to promote transparency and fight
corruption including the Promotion of Access to Information
Act 2000 and the Protected Disclosures Act 2000

17. The Protected Disclosures Act
2000

18. Aims:
The new law aims to provide a statutory framework which
Reassures workers with genuine concerns that there is a safe
alternative to silence
Promotes better accountability
Makes risk management an issue for all staff and managers
Helps everyone separate the message from the messenger

19. Applies to every employer and protects every employee
Wide definition of wrongdoing
Provides for financial (and other) compensation
Covers malpractice or “impropriety” which occurs outside the Republic of
South Africa
Allows disclosures of impropriety to person other than employer
Image from The University of Iowa Libraries

20. Detriment or dismissal automatically
unfair
Once you show the detriment, the employer would then
have to provide evidence that this was fair or they will
lose in the CCMA...

21. Who’s an employee?
(a) any person, excluding an
independent contractor, who
works for another person or for
the State and who receives or
is entitled to receive, any
remuneration;
(b) any other person who in
any manner assists in
carrying on or conducting the
business of an employer.
Worker by Photo by Agus Andrianto/CIFOR on Flicker
Service providers and independent contractors are not covered by the PDA. However, the
definition is far broader under the new Companies Act section 159(4).
In sub-section 4 of s159, the Companies Act extends the protections of the PDA to
• a registered trade union that represents employees of the company or another
representative of the employees of that company
• a supplier of goods or services to a company

22. The Objectives of the PDA are
to
Protect an employee from being subjected to an
“occupational detriment” on account of having made a
“protected disclosure”
Provide procedures for the disclosure of information
regarding possible malpractice
Prevent „gagging‟ of employees concerned about
malpractice
Create a workplace culture which facilitates the disclosure
of information about malpractice

23. So...what do we mean by occupational
detriment?
Any disciplinary action - including
dismissal, suspension, demotion, harassment or
intimidation
A transfer against the employee‟s will
Alteration of terms / conditions of employment to
employee‟s disadvantage...

24. Refusal of transfer or promotion
Refusal to provide reference or providing adverse
reference
Refusal of employment or appointment to office
Threatening the employee with any of the above

25. So...what would a disclosure be about?
A criminal offence or miscarriage of justice
A failure to comply with any legal obligation
A danger to health & safety or damage to the environment
Unfair discrimination
The likelihood that any of the above is, has or may occur
Deliberately concealing any of the above

26. By lawnborghini on Flickr
There are four main routes for legal
protection….

27. The Four Doors to Legal Protection: Door 1
(Clause 5)
To a legal adviser for the purpose of, or in the course
of, obtaining legal advice.
•Includes attorney, their shop steward or union organiser!

28. The Four Doors to Legal Protection: Door 2
(Clause 6)
In good faith, to the employer - and / or using a procedure
authorised by the employer, such as in a whistle-blowing
policy...preferred first step

29. The Four Doors to Legal Protection: Door 3
(Clause 8)
In good faith, to a specified regulatory body (includes Public
Protector and Auditor General)

30. The Four Doors to Legal Protection: Door 4 (Clause 7, 9)
Exceptionally
Fear of serious?
occupational
detriment?
Likely cover-up?
Wider disclosure such as to the media, made in good faith and not for personal
gain : it must be reasonable.

31. Nobody‟s perfect…
• Protective scope too small
– Only those whistleblowers who release within
a formal employment relationship
– excluding all persons in other commercial
relationships with the relevant organisation
such as customers, independent contractors
• Range of recipients too narrow
– SAHRC?
– PSAM?

32. Remedy issues:
• Resolutions of disputes are court-based
• It is only where an employer‟s retaliation
prejudices an employee‟s labour rights that the
PDA protection becomes available, and not before
then;
• The PDA provides no immunity against civil and
criminal liability arising out of the disclosure;
• There is no express obligation on organisations in
terms of the PDA to protect a whistleblower‟s
identity;
• The remedies that are available are insufficient
e.g. damages are limited to those damages in the
Labour Relations Act.

33. Practical advice
What you need to know about
general protected disclosures

34. The 4th door:
Wider disclosure
This protection applies where the whistle-blower honestly and
reasonably believes that the information and any allegation contained in
it are substantially true and that the disclosure is not made for personal
gain. Crucially, to be protected there must also be a good cause for
going outside and the particular disclosure must be reasonable.

35. A good cause?
Concerns the act of going outside the
organisation.
The four good causes
1. the concern was raised internally or with a
prescribed regulator, but has not been properly
addressed
2. the concern was not raised internally or with a
prescribed regulator because the whistle-blower
reasonably believed he or she would be
victimised
3. the concern was not raised internally because the
whistle-blower reasonably believed a cover-up
was likely and there was no prescribed regulator,
or
4. the concern was exceptionally serious.

36. Reasonableness?
Concerns the disclosure itself.
Possible factors include:
• the identity of the person it was made to
• the seriousness of the concern
• whether the risk or danger remains
• whether the disclosure breached a duty of
confidence the employer owed a third party.
• If raised with the employer or a prescribed
regulator, the tribunal will also consider their
response. It is not enough to have a whistle-
blowing policy only – action taken must be
appropriate.
• Finally protection may be lost if the worker failed
to comply with a whistle-blowing policy if available.

37. So key things to consider…
• What is the companies whistleblower
policy?
• What are the conditions which prevent
raising it internally? Is it worth trying this
route first?
• How reasonable is the concern?

38. Recourse
A victim can refer a dispute to the
Commission for Conciliation, Mediation
and Arbitration for conciliation and
thereafter to the Labour Court.
Dismissal = unfair dismissal
Victimisation = unfair labour practice

39. Those dismissed for making a protected
disclosure can claim either compensation,
up to a maximum amount of two years
salary, or reinstatement.
Those who are disadvantaged in some
other way as a result of making a
protected disclosure can claim
compensation or ask the court for any
other appropriate order.

40. “Injustice anywhere is a
threat to justice everywhere.”
-Martin Luther King, Jr.