Practical Guidelines for Employees in terms of Section 10(4)(a) of Protected Disclosures Act 2000: Department of Justice briefing

Meeting report

Introduction

The Chairperson opened the meeting by making introductions and pointed out that, because the meeting was a briefing by the Department of Justice and Constitutional Development, there would be no voting or deliberations by the Committee.

Department of Justice and Constitutional Development presentation
The Department apologised for the fact that the briefing document was made available in electronic format to Committee Members only earlier that morning.

Mr Henk du Preez, Senior State Law Advisor, Department of Justice and Constitutional Development, went through the briefing document with the Committee, highlighting its most important points.  He explained that the draft Practical Guidelines, as presented in the briefing document, flowed from a legislative requirement in Section 10(4)(a) of the Protected Disclosures Act 2000 (Act No. 26 of 2000) (‘the Act’).

The Act made provision for two aspects relating to the making of protected disclosures by employees.  Firstly, it set out procedures by which employees could report offences and improprieties in the workplace.  Secondly, it provided remedies for cases where employees were exposed to occupational detriment as a direct result of having made protected disclosures in terms of the Act.

When the Act was being drafted, it was referred to informally as ‘whistleblower protection legislation’, but the title ‘Protected Disclosures Act’ was deemed to be more appropriate, as it was found that the term ‘whistleblower’ sometimes had negative connotations attached to it.

The briefing document set out the purposes of the Act, which were to provide procedures in terms of which any employee might disclose information relating to an offence or a malpractice in the workplace by his or her employer or fellow employees, and protection for an employee, who had made a disclosure in accordance with the procedures provided for by the Act, against any reprisals as a result of such a disclosure.

Section 10(4) of the Act was the reason for the meeting, as that Section required the Minister of Justice and Constitutional Development to issue Practical Guidelines for employees.  The guidelines were aimed at providing employees who wished to make protected disclosures with a short summary of the Act, and a description of their rights and the steps that it empowered them to take.

Sections 2 and 3 of the Act provided that no employee might be victimised or penalised by his or her employer as a result of having made a disclosure in accordance with any one of the procedures provided for by the Act. Section 4 made provision for the various routes that an employee might follow towards attaining remedial action in case of victimisation.  Because the subject matter of the Act dealt with the relationship between employer and employee, the remedies available in terms of the Act were the same as those contained in the Labour Relations Act  1995 (Act No. 66 of 1995) (‘the LRA’).  The Protected Disclosures Act merely provided a framework for remedial action by employees in the context of the making of protected disclosures and subsequent unfair treatment on the part of employers.  Sections 5 to 9 of the Act dealt in detail with the various procedures that were to be followed to make a protected disclosure.

Section 10(4)(a) required that the Department of Justice and Constitutional Development provide an explanation of the Act in the form of Practical Guidelines, and Section 10(4)(c) required that all employees in all organs of state must be provided with such Practical Guidelines.  The Practical Guidelines as set out in the briefing document were essentially an easy-to-follow explanation of what the Act provides.

The Practical Guidelines were divided into four parts, ending with a full reproduction of the Act in Part IV.  The first three parts contained a simplified explanation of the most important parts of the legislation, with special emphasis on the rights of employees.

Part I gave a brief description of the Act’s purposes and how it worked, and provided information about the procedures to be followed by an employee who wished to disclose improprieties in the workplace, and the remedies available to an employee who had made such a protected disclosure. 

Part II dealt with the requirement in Section 10(4) (a), in terms of which the Guidelines were required to describe alternative statutory remedies available to employees, other than those provided for by the Act.  Alternative procedures to report or remedy a workplace impropriety were contained in the following legislation:
The Public Service Act (Proclamation 103 of 1994);
The Defence Act 2002 (Act No. 42 of 2002);
The South African Police Service Act 1995 (Act No. 68 of 1995);
The National Environmental Management Act 1998 (Act No. 107 of 1998);
The Western Cape Public Protector Act 1994 (Act No. 6 of 1994);
The Basic Conditions of Employment Act 1997 (Act No. 75 of 1997);
The Employment Equity Act 1998 (Act No. 55 of 1998);
The South African Human Rights Commission Act 1994 (Act No. 54 of 1994); and
The Promotion of Administrative Justice Act 2000 (Act No. 3 of 2000). 

Part III contained a list of the names and contact details of the various bodies that could be approached with information that qualified as a ‘protected disclosure’ in terms of Section 8(1)(a) of the Act.  These bodies included:
The Public Protector;
The Auditor-General;
The South African Human Rights Commission;
The Commission on Gender Equality; and
various offices of the Public Service Commission.

The Practical Guidelines set out five routes available to an employee who wished to ‘blow the whistle’ on criminal conduct or malpractices occurring in the workplace.  The five routes give an employee options on whom to approach when making a protected disclosure.  An employee could disclose information to (1) a legal representative, (2) his or her employer, (3) a Minister or a Member of the Executive Council (MEC), (4) a specified person or body, or (5) any other person, under certain circumstances.  The required course of action for each of these routes was explained, in plain language, in the Practical Guidelines.

The Guidelines explained the concept of ‘occupational detriment’, as defined in Section 1 of the Act.  If an employee was exposed to victimisation as a result of making a protected disclosure, the Guidelines set out the remedies as contained in the LRA.  If an employee was dismissed as a result of making a protected disclosure, such dismissal qualified as an automatically unfair dismissal in terms of the labour legislation.

The version of the draft Practical Guidelines that had been approved by the Portfolio Committee required only technical amendments – mostly to do with changing contact details of various Government bodies – and no substantive changes were recommended.  Additionally, specific units of the South African Police Service (SAPS) had been restructured and renamed since the document was first drafted, and the current draft Guidelines reflected these changes.

The finalisation and availability of the Practical Guidelines could take place once there had been approval by Parliament.  Section 10(4)(c) of the Act was important, as it provided that all Government departments must provide copies of the Guidelines to their employees. The Department foresaw that as soon as Parliament approved the Practical Guidelines, they would be published in the Government Gazette and provided to all national and provincial Directors-General so that they could make the Guidelines available to all state employees.  In addition, the private sector would need to provide their employees with access to the Guidelines, publishing them on their respective websites where possible.

Discussion
Mr L Nzimande (KwaZulu-Natal, ANC) asked if the term ‘Practical Guidelines’ meant that the contents of the briefing document were merely optional, and not peremptory.  He also asked whether issues surrounding declarations of conflicts of interest were covered in the Guidelines, or if that subject matter was dealt with in a separate document.  He thanked the Department of Justice & Constitutional Development for providing the briefing document in a format that could be converted into Braille, so that he could read it before the meeting.

Mr Du Preez replied that Section 10 of the Act required the publication of ‘practical guidelines’, and that since the legislation was enacted a need for Regulations had not been communicated to the Department, probably because the Act already contained a simple and straightforward explanation of the procedures to be followed.  When the Bill was being examined by Parliament, Members identified a need to explain the procedures to employees and to show that it was in their interests to make protected disclosures.  The ‘Practical Guidelines’ were given this title because that was the term used in the Act itself.  Because they were guidelines and not Regulations, they could not be regarded as subordinate legislation.  Declarations of conflict of interests were covered by the ambit of the Act, but were usually governed by other legislation, such as the Public Service Act (Proclamation 103 of 1994).

The Chairperson thanked the Department for the presentation.

Mr A Matila (Gauteng, ANC) pointed out that the reason for the low level of participation on the part of Committee members was that the briefing document was received only that morning.  He pointed out that it would be necessary for the Committee’s research team to read through the document in order to allow the Committee to engage more fully with its contents.  He requested that, in future, such documents be received in advance to allow Committee Members to prepare fully for presentations.

The meeting was adjourned.