By Ivan Israelstam, Chief Executive of Labour Law Management Consulting
Contact: (011) 888-7944 / 0828522973 | Email: ivan@labourlawadvice.co.za
Although the Protected Disclosures Act no. 26 of 2000 (PDA) is not a piece of labour legislation it does protect all employees working in South Africa. This applies whether the disclosure in question is made by the whistle blower to authorities within or outside of the employer entity.
While the PDA protects employees from reprisals when making good faith disclosures, it also protects employers, to a limited extent, from employees who make unfounded and malicious disclosures. That is, 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) where employers perpetrate “an occupational detriment” or an automatically unfair dismissal of an employee for having made a disclosure protected in terms of the PDA.
In the Case of Jane Arbuthnot vs SAMWU Provident Fund (2011, case number JS575/09) the employee was found to have been dismissed by the fund for having disclosed to the trade union’s National Benefits Officer the contents of a legal opinion document rendered by two advocates to the management of the fund. According to the case report the opinion advised the fund on the potential liability of its trustees flowing from the so called “Fidentia scandal”. The fund had invested money in a trust that was controlled by Fidentia and had thus lost a great deal of money. The trust’s beneficiaries were minors. According to the case report the employee interpreted the legal opinion to state that the trustees ought to have monitored the performance of the trust properly and that such failure amounts to breach of fiduciary duty of the trustees.
The fund alleged that the employee had made the disclosure in bad faith contrary to her fiduciary duty to the fund.
The Labour Court found that:
- A key reason for the dismissal was the applicant’s disclosure to the union’s benefits officer
- The employee had good reason to so disclose the document
- She did not do so for personal gain
- She believed the information to be substantially true
- The PDA cuts across the fiduciary duty of the employee making the disclosure
- The employee had the interests of the fund’s beneficiaries at heart
- The employee’s decision to disclose the opinion to the union was a reasonable one
- The disclosure was protected in terms of the PDA
- The dismissal was automatically unfair
The Court therefore ordered the fund to pay the employee 12 months’ remuneration amounting to over R 287 000,00 plus costs.
In view of the above outcome employers are advised to train their managers to understand the extent of the legislation protecting any employees make allegations involving employer wrongdoing.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve labour law knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
