23 June 2014 by Cliffe Dekker Hofmeyr Employment Alert

Draft Protected Disclosures Amendment Bill has wider ambit than before

The Protected Disclosures Amendment Bill of 2014 (Bill) seeks to amend the Protected Disclosures Act, No 26 of 2000 (Act). In short, the purpose of the Act is to provide procedures for disclosing certain information regarding unlawful or irregular conduct by employees or employers and to protect employees from being subjected to occupational detriment or victimisation on account of having made a protected disclosure.

A protected disclosure is a disclosure made to a legal adviser, an employer, a member of the executive council of a province, or a person or body which is made in good faith and is made substantially in accordance with any procedure prescribed. The proposed legislation seeks to improve the Act in varying ways; a few of the most prominent aspects will be expounded upon below.

The first important aspect is that the Bill seeks to remedy the Act by the addition of the word 'workers' to ensure that (independent contractors, consultants, agents and persons working for the State) will also be entitled to exercise certain remedies if they are subjected to an occupational detriment as a result of having made protected disclosures. In this regard, the Bill also seeks to extend the definition of ‘occupational detriment’ to include an employee or worker being subjected to any civil claim for the alleged breach of a duty of confidentiality or a confidentiality agreement arising out of the disclosure of a criminal offence.

The Bill further proposes that civil and criminal liability be excluded for disclosing information that would expose criminal activity in the hope that this would facilitate and encourage disclosure. However, it must be noted that in terms of the Bill, should an employee knowingly or believing the information not to be true, disclose false information they will be guilty of an offence and on conviction is liable to a fine or to imprisonment for a period not exceeding two years or both. The Bill moreover inserts a duty or obligation on employers to set up appropriate (internal) procedures for dealing with disclosures and to inform all employees and workers of such procedures and to conduct an investigation should a protected disclosure be made. With regard to victimisation of an employee for the protected disclosure, the Bill aims to impose joint liability on both the employer and client should the employer have acted with express or implied authority or with the knowledge of a client by subjecting the employee or worker to victimisation. Once such victimisation is proved, the Bill provides that compensation or damages will have to be paid to the employee or worker.

In conclusion, the Bill seeks to improve disclosure of information by making it the responsibility of every employee, worker and employer to disclose information without the fear of reprisal, should such disclosure relate to suspected or alleged criminal or other irregular conduct to prevent the irregular or unlawful conduct.

The Department of Justice and Constitutional Development has called upon all interested parties to submit comments on the Bill which are to be submitted no later than 4 July 2014.

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