The fine line between a grievance, workplace issues and whistleblowing

A constructive and healthy workplace environment is vital to a functioning and ultimately profitable workplace. Thus, employers and employees should know their respective obligations as founded in law, contract and/or policy. The objective should always be for parties to keep each other accountable for fulfilling their rights and obligations.

Whistleblowing (especially in larger organisations) is a critical component of corporate transparency and accountability. It empowers employees to report misconduct within their organisations, ultimately contributing to a fair and just working environment. In smaller organisations, ideally, employers would seek to avoid whistle-blowing by maintaining effective internal structures to allow for continuous improvement and open dialogue. In addition, they follow fair internal processes (including grievance proceedings) where workplace issues are expressed to them.

Labour Relations Act 66 1995 ("LRA" ):

Harassment and other workplace irregularities are often the subject matter of whistleblowing; harassment of an employee is a form of unfair discrimination. The most common form of harassment reported is sexual harassment, but harassment may also occur on any of the grounds listed below.

In summary, unfair discrimination occurs when an employer shows favour, prejudice or bias for or against a person on a prohibited ground, including a person's race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language or birth, or on any other arbitrary ground.

It is, therefore, vital for employers to align practices and policies in order to avoid whistleblowing, which ultimately (and in many instances) refers the matter to an external third party. Effective internal measures to prevent external involvement can go a long way if implemented correctly.

Moreover, the LRA protects employees from unfair labour practices, including dismissal for whistleblowing. The LRA often intersects with the Protected Disclosures Act 26 of 2000, ensuring that whistleblowers' rights are upheld within the broader context of labour relations.

One of the primary labour issues related to whistleblowing is the threat of occupational detriment. Whistleblowers may face various forms of retaliation, such as dismissal, harassment, or demotion, as a consequence of their disclosures. The Protected Disclosures Act 26 of 2000 and LRA are crucial in safeguarding whistleblowers from these unfair labour practices.

A key challenge is the prevailing corporate culture that often discourages whistleblowing. Many employees fear the repercussions of speaking out against wrongdoing, especially if it implicates their superiors or colleagues.

Protected Disclosures Act 26 of 2000 ("PDA")

The primary legislative framework that governs whistleblowing in South Africa is the PDA. The PDA is designed to protect whistleblowers from any form of occupational detriment that they might face as a result of their disclosures.

Key provisions:

• Definition of a protected disclosure: It outlines what constitutes a protected disclosure, emphasising the importance of disclosing unlawful conduct, gross mismanagement, and other forms of impropriety within an organisation.
• Protection from retaliation: The PDA provides legal protection to whistleblowers, ensuring they are shielded from any adverse actions or retaliation taken by their employers in response to their disclosures. 
• Reporting channels: The Act prescribes how whistleblowers should report their concerns and to whom within their organisation or to relevant external authorities. 
• Remedies and compensation: Whistleblowers who experience occupational detriment can seek compensation and remedies through the PDA, which includes reinstatement, damages, and legal costs.

According to the PDA, a disclosure is:

'disclosure' means any disclosure of information regarding any conduct of an employer, or an employee or of a worker of that employer, made by any employee or worker who has reason to believe that the information concerned shows or tends to show one or more of the following:

(a) That a criminal offence has been committed, is being committed or is likely to be committed;

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject;

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur; (d) that the health or safety of an individual has been, is being or is likely to be endangered;

(e) that the environment has been, is being or is likely to be damaged;

(f) unfair discrimination as contemplated in Chapter II of the Employment Equity Act, 1998 (Act 55 of 1998), or the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000); or

(g) that any matter referred to in paragraphs (a) to (f) has been, is being or is likely to be deliberately concealed.

Disclosure is, therefore, not confined to labour issues but often does involve them. From a labour perspective, unfair discrimination (including harassment) is usually a bone of contention where the fine line between a workplace issue and a whistleblowing issue can overlap.

Conclusion

Whistleblowing is a vital component of promoting accountability and transparency in the workplace. Erroneous reports must be handled with the required vigour, whilst valid reports are treated with seriousness.

Fostering a culture that encourages ethical behaviour and reporting of wrongdoing where the protection of whistleblowers remains a cornerstone of progress in the realm of labour and corporate ethics. Employees should first exhaust internal mechanisms before referring to external parties for resolution (including CCMA).

If the issues are organisation-wide, it is crucial to follow a correct and unbiased process. As an organisation, encouraging ethical practices and accountability is paramount.

Contact an attorney at SchoemanLaw for help when seeking to report matters internally or if seeking to report to a third-party institution. We also assist employers in reviewing and updating internal policies, processes and protocols as part of establishing and safeguarding a healthy and constructive workplace culture.