Corruption Watch made submissions yesterday in Parliament on the Protected Disclosures Act (PDA) amendment bill, which was published in December 2015. This act sets out the procedure that must be followed when public and private sector employees disclose information about unlawful behaviour in the workplace, and how those employees must be protected.
Delegations from the Open Democracy Advice Centre (Odac) and the Congress of South African Trade Unions (Cosatu) also made submissions.
The bill aims to:
- Extend the scope of employees who are able to claim protection under the PDA to include contract workers and those employees provided by a temporary employment service providers;
- Introduce a civil claim for any alleged breach of a confidentiality agreement;
- Impose a duty to investigate a protected disclosure on a person or body to whom a protected disclosure is made;
- Require a recipient of a protected disclosure to respond in writing to the employee concerned setting out how the investigation is proceeding and provide timelines within which the investigation will be completed;
- Empower employees to approach the court for relief if they face detrimental behaviour from employers;
- Immunise employees from civil and criminal liability flowing from a disclosure that reveals criminal activity; and
- Make the disclosure of false information an offence.
While we welcomed the opportunity to add our contributions, we expressed concern that the amendments were not comprehensive enough and still left gaps in some areas. We also had concerns about the implementation of the bill and certain practical challenges which face employees and workers when making protected disclosures.
Contributing to democracy
We confined our submissions to four main points:
- The definition of “business” and “worker”;
- The expanded definition of “occupational detriment”
- Section 9A which excludes civil and criminal liability for protected disclosures;
- The introduction of offences for making disclosures in bad faith;
In defining the terms “business” and “worker” we welcomed the extension of the definition to include workers employed by a temporary employment service and those employed as independent contractors, consultants or agents. However, we noted that the definition did not extend to people who serve in a voluntary capacity, in particular to members of school governing bodies, members of boards who are responsible for trusts, companies, voluntary associations and a wide range of other private and public bodies. We submit that they must also be protected under the PDA and that this must be stipulated in the legislation.
One of the most significant amendments concerns the definition of occupational detriment. This now includes the lodging of a civil claim against a whistle-blower whose job may include certain confidentiality requirements or agreements, and this is restricted to disclosure of criminal activities. We submit that employees and workers should also be protected when making disclosures about procurement irregularities, breach of legal obligations and other information referred to in the amended definition of “protected disclosure”.
The definition of occupational detriment should also include a prohibition on the lodging of criminal proceedings against employees or workers by the employer.
In terms of the exclusion of civil and criminal liability for protected disclosures, we are concerned that the onus is placed on the whistle-blower to show why he/she should not be subjected to civil or criminal charges. We also are concerned that the employee or worker is only protected from civil or criminal liability where he or she makes a disclosure involving a criminal offence. This significantly narrows the scope of what may be disclosed and prevents an employee or worker from making disclosures of information regarding, for example, procurement irregularities. We submit that protection should extend to all disclosures in terms of section 1(b) of the amendment bill.
In terms of the new section 3B, which provides for time periods within which an employer must revert to the whistle-blower on steps taken to address or investigate his or her protected disclosure, we submit that detailed reasons must be provided by the employer for any failure to take steps or any decision to not investigate a reported matter. The provision of reasons is essential to ensuring that the employer is held accountable for any arbitrary decisions and to ensure that employees and workers are able to interrogate whether the employer has applied his or her mind to the matter.
The new offence for the disclosure of false information is likely to deter employees and workers from making protected disclosures since some information may appear to be legitimate but may, after investigation, prove to be false or unreliable. This is why the employer must investigate the protected disclosure and revert to the employee on the veracity and possible action if proven to be true. In this regard, disclosures are not regarded as being protected if an employee does not make it in good faith. The introduction of an offence is therefore unnecessary and may serve to deter employees and workers from making disclosures.
Protecting the whistle-blowers
Whistle-blowers are the life blood of Corruption Watch’s operations. Much of our work is driven or bolstered by the reports that we receive and which are often given at great personal risk or cost, and we consider it a privilege to be able to engage with whistle-blowers.
We use the information in various ways – adding the report to a number of similar reports to help us with a campaign, policy brief or advocacy work; referring the report to an agency that can help; and starting an investigation, among other options.
It’s therefore important to us that legislation is in place that prevents anyone from victimising a whistle-blower. The PDA is one such piece of legislation.