The Protected Disclosure Act 26 of 2000 [hereinafter referred to as the “PDA”] was enacted to encourage ‘whistle-blowing’ and disclosure of information in order to eradicate corruption in both private and public sectors.
The PDA promotes a culture of openness and accountability without fear of reprisal and the eradication of criminal and other conduct.
Section 3 of the PDA provides that “no employee may be subjected to any occupational detriment by his or her employer on account, or partly on account, of having made a protected disclosure”.
‘Occupational detriment’ has been accorded a broad meaning, as per section 1 of the PDA. It includes being: subject to any disciplinary action; dismissed, suspended, demoted, harassed or intimidated; transferred against one’s will; refused a transfer or promotion; subject to a term of employment or retirement which is altered or kept altered to the employees disadvantage; refused a reference or provided with an adverse reference; denied appointment to any profession or office; threatened with any of the above actions; or otherwise adversely affected in respect of employment, a profession or office, including employment opportunities and work security.
‘Disclosure’ has been defined to mean any disclosure of information, regarding any conduct of an employer, or an employee of that employer, made by any employee who has reason to believe that the information concerned shows or tends to show any one or more of the listed improprieties as per Section 1 of the PDA.
The PDA goes on to distinguish between ‘protected disclosure’ and ‘general protected disclosure’. A protected disclosure is made to specific persons or bodies, or so called ‘regulators’ and is dealt with in section 5 to 8 of the PDA.
A ‘general protected disclosure’ is not made to a specified person or body and is further dealt with in section 9 of the PDA. In essence, it refers to any disclosure made in good faith by an employee who reasonably believes that the information disclosed, and any allegation contained in it, is substantially true and who does not make the disclosure for purposes of personal gain.
Requirements for establishing an unfair labour practice based on occupational detriment:
There are three basic requirements that an employee has to satisfy in order to establish an unfair labour practice based on occupational detriment:
In a nutshell, employees should take note that they cannot be punished for making a protected disclosure in terms of the PDA as this may constitute an automatically unfair dismissal or an unfair labour practice, depending on the circumstances.
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