Whistleblower Bill

Meeting report

JUSTICE & CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
1 March 2000
PROTECTION OF DISCLOSURES BILL

Documents handed out
Protection of Disclosures Bill [issued 29/2/2000]
Protection of Disclosures Bill, A Short Comment, Richard Calland, Idasa

SUMMARY
The Committee continued discussing the revised draft of the Bill from section 4 to section 9 and including references to sections 10 & 11. The liability provided for in section 4 was discussed, particularly in the context of the employment relationship. The different options available to the whistle-blower (the "five doors" - sections 5 -9) were discussed. The issue of providing for criminal liability would be discussed the following day.

MINUTES
Introduction
The Committee continued going through the revised Bill. The Chair, Adv J de Lange (ANC), noted that the Committee had discussed the Bill up to the end of Section 3 (Employee not to be held liable or to suffer any detriment on account of making a protected disclosure) the previous day and that there had been a thorough discussion of section 3 - the heart of the Bill. He stated that section 3 would be left as is and that a redraft based on the previous day's discussions would be inserted as an option.

The Chair noted that the question was whether the exclusion of criminal and civil liability would be constitutional. The provision is very far-reaching - it extinguishes rights. He noted that Parliament may limit rights but that there is a difficulty with Parliament's extinguishing rights.

Section 4 Additional Remedies
Section 4(1) - The Chair stated that section 4(1) required discussion. He stated that the way it is phrased at present was "not great" and he proposed using the wording as suggested by Ms S Camerer (NNP).

He stated that there were three requirements that had to be met - the employee had to prove:
That there is detriment.
That the detriment is a result of having made a protected disclosure.
That damage has been suffered.

The Chair noted that it should be provided that the person who is doing the victimising would be punished.

The Chair questioned how the employment relationship is affected if the relief contemplated in section 4(1) is included. He asked whether the relief should be provided in section 4 or whether it should rather be suggested in the resolution of the Committee. He questioned whether, in order to avoid unintended consequences, it should be suggested to Parliament that this issue be investigated.

Dr J Delport (DP) remarked that he was happy to go along with the suggestions of the Chair. He suggested further that it be discussed whether a provision should be included which provides that a person who suffers detriment may approach the High Court to set aside the employer's action or to compel the employer to act.

The Chair responded that the way he understood things, this would be the case in any event as it was agreed that the employment relationship should remain intact. He questioned whether stating this relief explicitly would be problematic. He remarked that there was a technical difficulty with Dr Delport's suggestion in that it would not be only the High Court that could be approached in this regard. It would be better to use the notion of 'a court having jurisdiction' as the Labour Court may be the appropriate court in an employment situation.

Mr de Lange, the drafter, stated that he was not an expert here but that he did have a concern that explicitly providing this relief may be a duplication of what is adequately provided for in, for example, the Labour Relations Act.

Ms F Chohan (ANC) proposed that it be investigated whether section 4(1) creates a new remedy. She stated that it was not clear why this matter was being approached form the angle of providing additional remedies which are not provided in other legislation. She stated that new remedies should not be provided for where there is no lacuna in the law.

The Chair concluded that the matter should be researched. Existing delictual remedies may cover the issue. He stated that he was not certain whether the Committee should go ahead and state the remedies explicitly.

Sections 4(2) & 4(3) - The Chair noted that these merely state the law as it is. He questioned whether these provisions were necessary. He warned that, because the wording may difer from other legislation, there may be a danger, not only of duplication, but of amending other legislation.

Ms Chohan remarked that, even if the remedies are provided in other legislation, it should nevertheless be discussed whether the remedies should also be provided here.

Mr I Solomon (ANC) noted, regarding a claim for damages and who the claim is brought against in an employment relationship, that a claim may be brought against a fellow employee, and not only against an employer.

The Chair remarked that the issue of vicarious liability should be looked at. Vicarious liability involves holding the employer responsible for the conduct of an employee who acts within the course and scope of his or her activities. This relates to legal activity. However, where an employee is engaged in victimisation, such an employee should be held liable and not the employer, who may not know anything of the victimisation. This should not affect the law of vicarious liability.

The Chair continued: Holding the person who actually engages in victimisation liable will result in less victimisation. He stated the point was that victimisation was not going to be rooted out if the person engaged in such conduct is not made to pay for it. The employer who may know nothing of the victimisation should not be held liable.

The Chair did however remark that this did not mean that what is provided is correct. The law of vicarious liability must not be affected but the wording needed to be researched.

Mr S Swart (ACDP) suggested incorporating punitive damages in order to emphasise the disdain with which the practice of victimisation is regarded.

The Chair stated that he had no problem with this and that it could be looked at. He commented that the harder the victimiser is hit, the better.

Mr de Lange stated that this would have to be looked at very carefully - it could not be easily slipped in.

The Chair summarised the issues to be looked at by Mr de Lange:

Firstly, the question of whether all the relief provided in employment law could be captured required investigation. Existing relief needed to remain intact. Both the wording and the principle needed to be looked at.

Secondly, the additional civil claims against the victimiser required investigation. It must be considered how the additional relief impacts upon existing law. It must be considered whether the relief provided in section 4(1) should be included in the Bill or in the resolution.

Thirdly, the Department of labour needed to be asked whether the remedies provided in sections 4(2) and (3) were not already available. If they are available, would the provisions amend existing legislation and are they indeed necessary?

Mr de Lange suggested following the Australian approach. It could be provided that the conduct could either constitute a delict or it could be provided that the conduct be brought under existing legislation in order to obtain the relief provided in such legislation.

The chair responded that this is why further research is required. He remarked that Mr de Lange's suggestion relates merely to channelling the cause of action.

Sections 5 - 9
These provide the five doors that the whistle-blower can walk through, depending on how sure he/she is of the information. The whistle-blower has options.

Section 5 Protected disclosure in course of obtainig legal advice
The Chair doubted whether this was a whistle-blower situation. It merely involves seeking advice. In South African law, there is only legal professional privilege, but lawyers are expensive. Therefore, the loose term of 'legal advice' is used - members of Parliament or shop stewards could be asked for advice. The provision extends the protection offered between attorneys and clients to other persons. Disclosures made to these other persons are therefore protected disclosures.

This section must be read with section 10(1)(b). Such an advisor cannot then go to the media to expose the situation, for example, and say that the disclosure to the media is a protected disclosure. The advisor does not have the protection afforded to the person who has been victimised and seeks the advice.

The Chair asked whether there were any points to be raised regarding sections 5 & 10(1)(b).

Ms Chohan raised the previous day's point of explicitly linking sections 5 & 10(1)(b). There is no guide for a person reading the act that the provisions are linked.

The Chair noted that there were two points here. Mr Masutha had suggested that the definition of 'protected disclosure' should refer to section 10. The problem is that protected disclosure is a procedural matter, but the issues in section 5 are substantive matters. He stated that section 10(1)(b) would be amended to link it to section 5.

Mr de Lange stated that he was not convinced that what is required by section 5 is in fact captured. He stated that legal advice should be confined to consultation with a fellow employee or a lawyer.

The Chair stated the principle here by using the example of a shop steward who is popular on the workplace floor and may well be asked for advice. However, in a union, when people seek advice, they may go to the union's legal advisor who may not be employed at the same place, and not the shop steward. He stated that the place where legal advice is obtained must not be limited. Further, there is no problem with the notion contained in section 10(1)(b).

Ms S Camerer (NNP) stated that good faith should be the first hurdle for all disclosure but that it is omitted from section 5.

The Chair responded that English law requires good faith for all disclosures except legal advice. This is correct as it is only after advice has been taken that any relevant decisions can be taken in good faith. Good faith should only be a requirement for the other disclosures (sections 6-9).

Section 6 Protected disclosure to employer
This section is important and deals with disclosures to an employer. The Chair noted that good faith is a requirement here. He suggested that instead of the phrase 'by the employee's employer', a phrase something like 'a prescribed procedure' be used.

Mr de Lange noted that using the word 'prescribed' refers specifically to regulations in terms of the Act. The Chair suggested using the phrase 'the procedure in terms of this or other legislation or agreement'.

Mr de Lange noted that this provision was derived from the British example but that certain aspects of British law regarding to whom a disclosure may be made has been omitted. The Chair proposed that section 43(1)(b) of the English Bill be included here as section 6(1)(c).

Ms Camerer questioned whether section 6(2) refers to shop stewards. The Chair responded in the negative and said that this refers to a complaint to an employer. He stated that section 6 should be read with section 11(2)(a). He emphasised that a mechanism must be created for whistle-blowing by government employees within a department.

Section 7 Protected disclosure to to member of Cabinet or MEC
The Chair noted that this provides for a complaint to a Minister or MEC. He noted that the way it is drafted allows any person to complain to any Minister. He suggested using something like 'a disclosure made to the relevant / that Minister'.

Mr de Lange noted that this provision had been taken directly from English law and did not address a disclosure made to the President or Deputy President. These persons are not part of the Executive, but should be included.

Ms Chohan stated that there needed to be some flexibility. She stated that there was no problem with providing for a disclosure made to the relevant Minister, but that there may be a problem in determining who the relevant employer/ Minister is. The matter should not be limited to the relevant Minister as this could cause difficulties, for example, where the Minister is unavailable.

The Chair remarked that this would be meaningless. He cited the example of a housing complaint that is given to the Justice Minister. This complaint would simply be handed from the Justice Minister to the Housing Minister.

Ms Chohan stated that this is not what she was trying to convey. The provision as it now stands caters for the situation where a Minister may not be able or disposed to hear a complaint.

Mr de Lange stated that the only reason that he could perceive for the English law provision allowing the complainant to go to another Minister, is where the relevant Minister is the person complained about.

The Chair stated that he was not convinced and that the issue required consideration.

Section 8 Protected disclosure to certain persons or bodies
This section must be read with section 11(1), particularly section 11(1)(d). The Chair stated that it was up for debate whether the section is necessary. He believed it should be included as it extends what can be reported to, for example, The Public Protector.

Ms Camerer asked why the SAHRC had disappeared and made the suggestion that it, the Gender Commission and Public Service Commission be added.

The Chair stated that he thought the New South Wales approach was the best one. He added that it is clear which disclosures should be made to, for example, the Public Protector. However, when other bodies are added it becomes uncertain which bodies should be approached when making a disclosure. Therefore, it would be better not to list all the various bodies and to think carefully about how to address the issue.

Ms Camerer stated that there were strong arguments for the inclusion of the Public Service Commission, Gender Commission and SAHRC.

The Chair commented that the bodies included in the draft have their own enforcement mechanisms. He made the suggestion that the proposed alternative institutions be included in brackets for discussion (ie SAHRC and Gender Commission).

Mr de Lange remarked that the English example does not mention the specific institutions.

He noted that, in respect of the National Director of Public Prosecutions, there may be a conceptual confusion between 'laying a criminal charge' and making a 'protected disclosure'. The problem arises that laying a charge could be interpreted as making a disclosure.

The Chair suggested putting the National Director of Public Prosecutions in square brackets. The Director can be included, but it must be clear that this only applies when a complainant is whistle-blowing and not when they are laying a charge. The Chair suggested that another solution would be, under the definition of 'disclosure', to say 'any disclosure in terms of the Act'.

Mr de Lange stated that he would look at the definition.

Section 9 General protected disclosure
The Chair stated that this was straightforward - the disclosure must be made in good faith, be substantially true, it must not be for gain, it must have been reasonable to make and it must satisfy one of the conditions in section 9(2)(a), (b) or (c).

Section 9(3) in merely a guide to the courts.

The Chair stated that the central issue for discussion the following day would be the creation of criminal offences. The Chair commented that he thought that this should be carefully considered and that there may be many unintended consequences created in the labour field. He mentioned that it could be used as a bargaining chip and that this route should not be taken.

The Chair commented further that if it is decided not to provide for criminal liability, section 3 must be tightened up. In particular, he mentioned that the civil remedies would not be sufficiently stringent.

The Chair closed by saying that after tomorrow's meeting, the Bill would then have been gone through carefully once. He noted that a name must be considered for the Act.

The Chair stated that the Committee would meet tomorrow at 14h30. He also requested that it be ascertained whether the Swedish delegates who are scheduled to meet with the Committee at 11h00 on Friday morning could perhaps meet at 9h00. If this could not be arranged, the meeting would have to remain at 11h00.
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