Protected Disclosures Act, 2000 (Act 26 of 2000)
Draft Practical Guidelines for Employees
Section 10(4)(a) of the Protected Disclosures Act, 2000 (Act 26 of 200), which has not been put into operation yet, requires that the Minister of Justice and Constitutional Development must issue practical guidelines which explain the provisions of the Act and all procedures which are available in terms of any law to employees who wish to report or otherwise remedy an impropriety.
The Department has prepared draft guidelines aimed at addressing the first requirement as set out in section 10(4)(a) of the Act, namely to explain the provisions of the Act. These draft guidelines are made available on this website with the purpose of soliciting comments from interested persons, including Government departments and the business sector, who wish to assist the Department in identifying all procedures which are available in terms of any law to employees who wish to report or otherwise remedy an impropriety in the workplace.
It will be appreciated if the relevant comments could be e-mailed on or before 30 March 2001 for the attention of Mr H J du Preez at e-mail address: HduPreez@justice.gov.za or EStrauss@justice.gov.za
These guidelines are issued in terms of the Protected Disclosures Act, 2000 (Act 26 of 2000), and are aimed at assisting employees who wish to disclose certain information.1
PART A (HOW THE ACT WORKS)
1. Purpose of the Act
The purpose of the Protected Disclosures Act, 2000, is to provide procedures and to offer protection.
2. How the Act works
No employee may be victimised or penalised by his or her employer on account of having made a disclosure in accordance with any one of the procedures provided for by the Act.2
The procedures provided for in the Act can be described as routes that can be followed in order to disclose the information. An employee who discloses information through one of these routes will be protected from being victimised or penalised in his or her working environment.
Each of these routes have certain requirements which must be complied with. These requirements become more and more comprehensive as one moves from a disclosure made to a legal representative to a disclosure made to any other person. The fewest requirements are applicable in respect of a disclosure made to a legal representative. The most requirements apply in respect of a general disclosure to any other person.
3. Why should I make a disclosure ?
The preamble of the Act states that
It stands to reason that, by remaining silent about corruption, offences or other malpractices taking place in the workplace, an employee necessarily contributes to, and becomes part of, a culture of fostering such improprieties which, will undermine his or her own career as well as be detrimental to the legitimate interests of the South African society in general.
This Act therefore purports to create an environment in which
4. How do I make a disclosure ?
If an employee decides to blow the whistle on criminal conduct or malpractices in the workplace, he or she may disclose that information by making use of the routes provided for in the Act, which are the following:
A disclosure can be made to a person (legal representative) whose occupation must involve the giving of legal advice.
The information must be given for the purpose of obtaining legal advice. In many instances an employee will first wish to obtain legal advice regarding the making of the disclosure in terms of the Act and, in this process, make a disclosure to the legal adviser concerned.
The Act provides that an employee can, in good faith, make a disclosure to his or her employer.
An employer may decide to lay down certain procedures in terms of which disclosures must be made which may include that a disclosure must be made to a person other than the employer. For the purpose of the Act, however, such a disclosure will also be regarded as a disclosure to the employer.
Minister or MEC of a province5
The employee must act in good faith when making a disclosure to a Minister or an MEC of a province.
This procedure only applies if the employer is
Specified person or body6
The employee must act in good faith when making a disclosure to a person or body specified in terms of the Act.
The information and allegations contained therein must be substantially true.
The Act provides that a disclosure may be made to the Public Protector or Auditor-General and that the disclosure should relate to matters which in the ordinary course are dealt with by the Public Protector or Auditor-General.
The employee must act in good faith when making a disclosure to any other person. In making the disclosure the employee must reasonably believe that the information is true.
One or more of the following must apply:
5. Against what am I protected ?
It has been mentioned in paragraph 2 above, that an "employee who discloses information through one of these routes will be protected from being victimised or penalised in his or her working environment.". In other words the Act prohibits an employer form subjecting an employee to what is called an "occupational detriment". An occupational detriment is
Section 4(2) of the Act provides that for the purposes of the Labour Relations Act, 1995, a dismissal, referred to above, is deemed to be an "automatically unfair dismissal". Any other occupational detriment referred to above is deemed to be an "unfair labour practice".
6. What do I do if I am victimised as a result of making the disclosure ?
An employee who has been subjected to an occupational detriment as a result of making a disclosure may approach any court having jurisdiction for protection.
Since the Act relates to the employer/employee relationship, an employee may also use the relevant procedures provided for in terms of the Labour Relations Act, 1995 (Act 66 of 1995). For example, if an employee is dismissed as a result of making a disclosure in terms of the Protected Disclosures Act, that dismissal is deemed to be an "automatically unfair dismissal". All other forms of occupational detriment referred to in paragraph 4 above, are deemed to be "unfair labour practices" as contemplated in the Labour Relations Act, 1995.
The employee who was dismissed may refer the dispute in writing within 30 days of the dismissal to a council if the parties fall within the registered scope of that council or to the Commission if no council has jurisdiction.
PART B (OTHER AVAILABLE PROCEDURES)
7. Are there any other procedures to report or remedy an impropriety?
The question may be asked whether there are any other procedures, separate from those provided for in the Protected Disclosures Act, 2000, which are available to employees who wish to report or otherwise remedy an impropriety in the workplace. An employee who wish to report or otherwise remedy an impropriety in the workplace may make use of the following procedures
Contact details: The Public Protector