Robust Whistleblower Protection will ensure a better society for all

Robust Whistleblower Protection will ensure a better society for all

Whistleblowers are essential in exposing fraud, corruption and wrongdoing in our organisations and in our society as a whole. Prominent South African Whistleblowers such as Bianca Goodson, former CEO of Trillian, and Cynthia Stimpel, former group treasurer at SAA, have proven in the last few years that Whistleblowers play a crucial role in uncovering vital information needed to stop fraud and corruption, and in some cases save organisations billions of Rands. However, these cases also highlight the importance of having robust, legislative protections in place for Whistleblowers.

There is a strange contradiction surrounding Whistleblowers and Whistleblowing in our society. On the one hand, citizens have a right to report wrongdoing and are even expected to speak out when they see something or know of something untoward. On the other hand, Whistleblowers, more often than not, face possible ostracisation, damage to their careers, and risk their safety and their family’s safety when speaking out.

In an effort to protect Whistleblowers, South Africa enacted the Protected Disclosures Act 26 of 2000 (hereinafter the “PDA”). The PDA is a recognition that there may be criminal or irregular conduct in state and private institutions, which is detrimental to society. Accordingly, the PDA sets out various procedures that employees can follow to report this illegal or irregular activity. Furthermore, the PDA places an onus on employers to protect employees from any detriment, as a result of disclosing such information.

The PDA contains a closed list of what constitutes a ‘disclosure’ for the purpose of being protected, which includes information regarding conduct that would amount to inter alia:

  • Committing a criminal offence
  • Failing to comply with legislation
  • Endangering the health or safety on an individual, or
  • Unfair discrimination.

In 2017, the PDA was amended to include a much needed broadening of the scope of protection which includes both ‘workers’ and ‘employees’. Under the amended PDA, the term ‘worker’ was included, to extend the protections of the PDA to contractors, consultants and agents, even those rendering services on a part-time basis.

Transparency International compiled the International Principles for Whistleblower Legislation, which was published in 2013, as well as A Best Practice Guide for Whistleblowing Legislation, in 2016. Both these documents set out and expand on the principles that governments should keep in mind when drafting their Whistleblower Protection legislation. South Africa is slightly ahead of the global curve, in that it has legislation that specifically protects Whistleblowers. However, as indicated by the Goodson and Stimpel cases, the current legislation is insufficient to protect Whistleblowers.

Bearing in mind the principles published by Transparency International, the following recommendations may assist in creating more robust legislative protection for Whistleblowers:

1. Create an open list for what constitutes ‘occupational detriment’

The PDA sets out a list of ten instances that constitute ‘occupational detriment’. The list includes, inter alia being subjected to disciplinary action, being dismissed, suspended, or demoted, and harassment or intimidation. Although the list is extensive, it does not meet the best practice standard.

According to best practice, an open list that makes use of phrases such as “and any similar or related conduct” will broaden the scope of protection, which could include ‘occupational detriment’ not necessarily envisioned when drafting the legislation.

2. Broaden the definition of ‘employee’ to include ‘applicant’

Apart from potentially losing your job, Whistleblowers also face the fear that blowing the whistle may taint them for future job prospects. Broadening the definition of ‘employee’ to include ‘applicant’ will protect applicants from not being appointed in a position because they blew the whistle in the past.

3. Consider Whistleblower Rewards

The National Whistleblowers Centre conducted a study in 2015, into the effectiveness of the American Whistleblower Rewards Laws. Their findings included that Whistleblowing Rewards laws not only encourages Whistleblowing, but also leads to higher quality disclosures that eventually lead to prosecutions.

Whistleblower Rewards should not be dismissed too lightly. Although some fear that it will lead to a lot of opportunists making false claims, utilising Whistleblower Rewards effectively could:

a.) Shift the way society views Whistleblowers: by rewarding Whistleblowers for their courageous actions, it sends a message that this is the kind of behaviour that should be aspired to and could lead to more Whistleblowing.

b.) Compensates Whistleblowers for potential loss: before blowing the whistle, many Whistleblowers grapple with the prospect of losing their job or needing additional security for themselves and their family. Compensating Whistleblowers will put them at ease that any economic loss s speaking out will be regained.

Whistleblowers should not have to face a moral dilemma when contemplating whether to blow the whistle or not. The choice should not have to be between doing the right thing or severe economic and physical detriment to themselves and their families. Robust protections will not only encourage further Whistleblowing, but it will also ensure that those who did the right thing, sometimes at great personal cost, are properly rewarded for doing so.

References:

  1. Protected Disclosures Act, 26 of 2000
  2. Protected Disclosures Amendment Act, 5 of 2017
  3. International Principles for Whistleblower Legislation by Transparency International
  4. A Best Practice Guide for Whistleblowing Legislation by Transparency International
  5. Whistleblower Reward Programs: An International Framework for the Detection of Corruption and Illegal Bribery by National Whistleblowers Centre.