Protected Disclosures Bill: discussion

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
12 June 2000
PROTECTED DISCLOSURES BILL: DISCUSSION

Documents Handed Out:
Protected Disclosures Bill
Legal Opinion on Protected Disclosures Bill
Draft Amending Options for Clause 4(1) of the Protected Disclosures Bill (see Appendix 1)

SUMMARY
The committee discussed a proposed amendment to the Protected Disclosures Bill. It was proposed that Clause 4 be amended to give the Labour Court jurisdiction over the Bill. The new clause would:
· ensure the Labour Court had jurisdiction over instances of occupational detriment,
· allow for the involvement of the CCMA and
· bring the provisions of this Act in line with the Labour Relations Act.

MINUTES
Mr Johan de Lange, Director of Parliamentary Legislation in the Justice Department, briefed the Committee on the proposed amendment to section 4(1) of the Protected Disclosures Bill.

Mr de Lange stated the proposed amendment arose from the realization that the Labour Court would not have jurisdiction over this Act. The jurisdiction of the Labour Court is defined in specific terms by the Labour Relations Act. It was also believed that the Council for Conciliation, Mediation and Arbitration (CCMA) would also not have jurisdiction over the Act.

The Portfolio Committee on Safety and Security, in consultation with the Department of Labour, believed the wording of 4(1) was not specific enough in identifying the courts that had jurisdiction.

Mr de Lange stated the proposed amended clause would ensure the Labour Court had jurisdiction over instances of occupational detriment, allow for the involvement of the CCMA, and bring the provisions of this Act in line with the Labour Relations Act.

The proposed amendment stipulates the following:
4(1) states that any employee who has been subject to an occupational detriment in breach of section 3 may approach any High Court, the Labour Court, or any other process prescribed by the law for appropriate relief.

4(2) states that the Labour Court shall have concurrent jurisdiction with the High Courts over violations of section 3.

4(3) states that any dismissal in terms of section 3 must follow the procedures set out in Chapter VIII of the Labour Relations Act. It also states any occupational detriment that results from unfair labour practice as contemplated in Part B of Schedule 7 of that Act must attempt to be resolved through negotiation, before being referred to the Labour Court.

4(4) and 4(5) remained unchanged.

Discussion
Mr Lever (DP) was uncomfortable with the proposed 4(3) being a "catch-all" phrase, since it would allow for other Acts to externally include themselves in this Act. He argued that catch-all phrases must only be used when it was justified, which he felt it was not in this case. He suggested that the subclause be removed or rephrased in a less complicated manner.

Mr de Lange reminded Mr Lever that the Minister must, as stated in 10(4), make available practical guidelines which would explain the provisions of this Act and all it's procedures to employees. Although, he agreed that the wording was not clear, he felt that section 10(4) would clarify the process for employees who wanted to report impropriety. Mr Lever (DP) was wary that this would be granting the Minister excessive powers.

Mr Lever (DP) further raised concern over clause 5, Protected disclosure to legal advisor. He felt the terms "legal practitioner" and "legal advice" were sufficiently broad, but questioned whether legal should precede advice.

Mr De Lange stated that the portfolio committee had also had intense debates on the wording of that phrase. The portfolio committee had decided that a person may make disclosures, but that if not to the right person, it would not be protected. The term was made more narrow by stating that "a person whose occupation involves the giving of legal advice." The procedure now stands that an individual cannot make a disclosure to a shop steward, and expect it to be protected. Rather the shop steward must inform the individual who they can disclose to with protection.

Mr Lever (DP) suggested that the clause include only legal practitioner . Mr de Lange stated that was not possible since many people are allowed to provide legal advice, who do not fall under the category of legal practitioner. No other problems were raised.

The Chair stated that since this was a Section 75 Bill, members must consult with their parties before a decision was made. The Chair said discussions on the Bill would be concluded at the next meeting.

The meeting was adjourned.

Appendix 1:
DRAFT AMENDING OPTIONS FOR CLAUSE 4(1) OF THE PROTECTED
DISCLOSURES BILL, 2000

EXISTING PROVISION:
Remedies
4. (1) An employee may approach any Court or tribunal having jurisdiction or may pursue any other process allowed or prescribed by any law, including the common law, in order to protect himself or herself from suffering any occupational detriment in breach of section 3.
(2) Any employee who has made a protected disclosure and who reasonably believes that he or she may be adversely affected on account of having made that disclosure, must, at his or her request and if reasonably possible or practicable, be transferred from the post or position occupied by him or her at the time of the disclosure to another post or position in the same division or another division of his or her employer or, where the person making the disclosure is employed by an organ ofstate. to another organ of state.
(3) The terms and conditions of emplovment of a person transferred in terms of subsection (2) mav not, without his or her written consent, be less favourable than the terms and conditions applicable to him or her immediately before his or her transfer.

OPTION:
Remedies
4. (1) Any employee who has been subjected, or is subject, to an occupational
detriment in breach of section 3, may
(a) approach any High Court for appropriate relief; or
(h) approach the Labour Court established by section 151 of the Labour Relations Act, 1995 (Act No.66 of 1995) for appropriate relief; or
(c) pursue any other process allowed or prescribed by any law.
(2) The Labour Court shall have concurrent jurisdiction with the High Courts in respect of any alleged or threatened violation of section 3.
(3) For the purposes of the Labour Relations Act, 1995
(a) any dismissal in breach of section 3 is deemed to be an automatically unfair dismissal as contemplated in section 187 of that Act, and the dispute about such a dismissal must follow the procedure set out in Chapter VIII of that Act; and
(b) any other occupational detriment in breach of section 3 is deemed to be an unfair labour practice as contemplated in Part B of Schedule 7 to that Act, and the dispute about such an unfair labour practice must follow the procedure set out in that Part: provided that the matter fails to be resolved through conciliation, it may be referred to the Labour Court for adjudication.
(4) Any employee who has made a protected disclosure and who reasonably believes that he or she may be adversely affected on account of having made that disclosure must, at his or her request and if reasonably possible or practicable, be transferred from the post or position occupied by him or her at the time of the disclosure to another post or position in the same division or another division of his or her employer or, where the person making the disclosure is employed by an organ of state, to another organ of state.
(5) The terms and conditions of employment of a person transferred in terms of subsection (2) may not, without his or her written consent, be less favourable than the terms and conditions applicable to him or her immediately before his or her transfer.