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How Whistleblowers are Protected by Law in the Workplace

Employees are protected by law from being treated unfairly on account of having disclosed information regarding improprieties by his or her employer. 


The Labour Relations Act (LRA), provides three important rights to such whistleblowers. These rights are found in sections 186(2)(d), 187(1)(h) and 188A(11) of the LRA.


Section 186(2)(d) of the LRA

An unfair labour practice (ULP) is defined, in section 186(2)(d) of the LRA,  to include an occupational detriment, other than a dismissal, in contravention of the PDA.


The procedure for the resolution of ULP disputes, are set out in section 191 of the LRA.


Section 4(2)(b) of the Protected Disclosures Act (PDA) provides that any occupational detriment, other than dismissal, is deemed to be an ULP.


Section 186(2) of the LRA, which regulates the definition of unfair labour practices (ULP), provides in subsection (d):


“‘Unfair labour practice’ means an unfair act or omission that arises between an employer and an employee involving - … an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act …, on account of the employee having made a protected disclosure defined in that Act”.


Section 1 of the Protected Disclosures Act (PDA) states that a ‘protected disclosure’ is, in so far as it is relevant to the employment relationship, a disclosure made to an employer in accordance with section 6 of the PDA.


Section 6(1)(a) and (b) of the PDA, which regulates protected disclosures made to employers, state:


“Any disclosure made in good faith – (a) and substantially in accordance with any procedure prescribed or authorised by the employee’s employer for reporting or otherwise remedying the impropriety concerned or (b) to the employer of the employee, where there is no procedure as contemplated in paragraph (a), is a protected disclosure.


The PDA further provides in section 6(2):


“Any employee who, in accordance with a procedure authorised by his or her employer, makes a disclosure to a person other than his or her employer, is deemed, for the purposes of this Act, to be making the disclosure to his or her employer.”


Section 3 of the PDA prohibits an employer subjecting an employee, who made a protected disclosure, to an occupational detriment. Section 3 of the PDA states:


“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”.


A ‘protected disclosure’ is defined, in so far as it pertains to the employment relationship, in section 1 of the PDA as:

  1. “being subjected to any disciplinary action”,

  2. “being dismissed, suspended, demoted, harassed or intimidated”,

  3. “being transferred against his or her will”, 

  4. “being refused transfer or promotion”,

  5. “being subjected to a term or condition of employment or retirement which is altered or kept altered to his or her disadvantage”,

  6. “being refused a reference, or being provided with an adverse reference, from his or her employer”,

  7. “being denied appointment to any employment, profession or office”,

  8. “being threatened with any of the actions referred to paragraphs (a) to (g)”, or

  9. “being otherwise adversely affected in respect of his or her employment, profession or office, including employment opportunities and work security”.

Section 191(1), read with section 191(5), (11) and (13), of the LRA provides:

  1. An ULP, relating to occupational detriment, may be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation within 90 days of the date of the act or omission, or If the date on which the employee became aware of the act or occurrence.

  2. If the CCMA certifies that the dispute remains unresolved, or if 30 days, or any further period as agreed between the parties, have expired since the CCMA received the referral, and the dispute remains unresolved; then the employee may, within 90 days thereafter, refer a dispute to the CCMA for arbitration or the Labour Court for adjudication.

Section 187(1)(h) of the LRA

Section 187 of the LRA, which regulates automatically unfair dismissals, states in subsection (1)(h):


“A dismissal is automatically unfair … if the reason for the dismissal is - (h) a contravention of the Protected Disclosures Act, 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act”.


Section 188 of the LRA defines an ordinary unfair dismissal dispute, as opposed to an automatically unfair dismissal dispute defined in section 187 of the LRA. The difference between the two lies in the procedure to enforce the unfair dismissal dispute and the amount of compensation that the presiding official, seized with the dispute, may award. 


In the case of an ordinary unfair dismissal dispute, the procedure is to refer it to the CCMA or BC for conciliation, and then to the CCMA or BC for arbitration. In the case of an automatically unfair dismissal, the procedure is to refer the dispute, after conciliation, to the Labour Court for adjudication. Section 191(5)(b)(i) of the LRA provides:


“If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days or any further period as agreed between the parties have expired since the council or the Commission received the referral and the dispute remains unresolved - (b) the employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is - (i) automatically unfair …”.


Section 191(11) (a) of the LRA provides the referral of an automatically unfair dismissal must be made to the Labour Court for adjudication within 90 days after the BC or the CCMA has certified that the dispute remains unresolved.


Section 194(3) of the LRA provides:


“The compensation awarded to an employee whose dismissal is automatically unfair must be … not more than the equivalent of 24 months’ remuneration …”.


The compensation awarded to an employee whose dismissal is ordinarily unfair, as opposed to automatically unfair, must not more than the equivalent of 12 months’ remuneration.


188A(11) of the LRA

Section 188A of the LRA, which regulates the appointment of a Commissioner to arbitrate the employer’s internal misconduct or incapacity proceedings, provides in subsection (11):


“… if an employee alleges in good faith that the holding of an inquiry contravenes the Protected Disclosures Act …, that employee or the employer may require that an inquiry be conducted in terms of this section into allegations by the employer into the conduct or capacity of the employee”.


Section 188A of the LRA goes on to provide, in subsection (12):


“The holding of an inquiry by an arbitrator in terms of this section and the suspension of an employee on full pay pending the outcome of such an inquiry do not constitute an occupational detriment as contemplated in the Protected Disclosures Act …”


These provisions, which came into effect in 2014, provide, in essence, that either the employee or the employer may exercise an election to have the internal disciplinary or incapacity hearing at the CCMA or BC presided by a Commissioner appointed in terms of the LRA. In practice this means that an employee, after being accused of misconduct and/or incapacity allegations, may inform the employer that she/she is of the good faith view that the employer’s anticipated misconduct or incapacity inquiry contravenes the PDA. Once the employee makes this communication, the employer would either process the request to the CCMA or BC to have the proceedings held before a Commissioner or would proceed with the hearing internally. The employee cannot raise, as defence, that the provisions of the PDA is applicable, if the proceedings do take place before a Commissioner. If, however, despite having made this election, the employer holds the hearing internally, then the employee may raise such a defence. Further, an employee is prohibited from referring an ULP, in terms of section 186(2)(d) of the LRA, if the proceedings do take place before a Commissioner. 


The question arises as to whether the employee has the added right, if the employer refuses to heed his/her election to have the hearing held before a Commissioner, to approach the LC for an order interdicting the hearing. The Labour Court reasoned, in this regard, in the judgement of Motloung v Universal Service And Access Of South Africa and Others (J245/2023) [2023] ZALCJHB 35 (8 March 2023) at [15] (“the Motloung judgement”):


“Section 188A(11) provides that if an employee alleges in good faith that the holding of an inquiry contravenes the PDA, that employee or the employer, may require that an inquiry be conducted in terms of section 188A, into the allegations by the employer into the conduct or capacity of the employee, and further provides that the holding of such an inquiry does not constitute an occupational detriment, as contemplated in the PDA”.


The Labour Court reasoned, at paragraph the [18] of the Motloung judgement, that the employee has the remedies provided in sections 186(2)(d), 191(1)(a) or 191(13) of the LRA, if the protected disclosure defence is invoked. 


The Labour Court reasoned, further, at paragraph the [19] of the Motloung judgement:


“… the provisions of section 188A(11) are not intended or designed to compel an employer (or an employee) to be subjected to two simultaneous and parallel disciplinary processes. They were not designed or intended to determine whether the facts constituted a protected disclosure as contemplated by the PDA or not, and if not, for an internal disciplinary hearing to proceed. This section of the LRA merely provided for an inquiry into allegations pertaining to the conduct or capacity of an employee by the CCMA”.


The Labour Court concluded, at paragraph the [20] of the Motloung judgement:


“Effectively what the above means is that since the provisions of section 186(2)(d) and those of section 191(13) of the LRA are designed to cater for unfair labour practice disputes in instances where the conduct on the part of the employer complained of is alleged to amount to an occupational detriment …, it is under these provisions at which a determination can be made as to whether a disclosure, if any, deserved protection under the PDA”.

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