Whistleblower overload - part 1: When grievances masquerade as whistleblowing

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Part 1 focuses on the types of grievances covered by whistleblowing and the correct procedures to follow for grievances that are not covered by the Protected Disclosure Act (PDA).

Employers are experiencing a proliferation of ‘whistleblowing complaints’ lodged under whistleblowing policies that are not protected disclosures, but rather, grievances or retaliatory measures against managers. Because the complaints are made in terms of whistleblowing policies, considerable effort and expense are incurred in investigating these matters.

In many instances, the complaints are found to be without substance and are issues of managerial style or a new manager demanding different performance standards.

To compound matters, many of the complaints are lodged anonymously. This makes investigation difficult and requires numerous people to be interviewed. Because anonymity is guaranteed, unsubstantiated claims can be made without fear of consequence.

Challenges with internal policies and procedures

Many challenges arise from the drafting of whistleblowing policies, where issues are covered that go beyond those prescribed by the PDA. The PDA was never intended to cover ordinary grievances or issues that are not serious breaches of either criminal or statutory law.

The PDA defines protected disclosures to include those relating to:

• a criminal offence being committed;
• a person failing to comply with a legal obligation;
• a miscarriage of justice;
• the endangerment of the health or safety of an individual;
• damage to the environment; or
• unfair discrimination as contemplated in the Employment Equity Act.

The primary intention of the PDA is to encourage the disclosure of serious transgressions by an employer or its employees without fear of retaliation. It also allows for a process of escalation that protects an employee if they choose to escalate the matter outside the company, even if it brings the employer into disrepute.

There are added protections for the employee in the Labour Relations Act (LRA) if the employer chooses to take disciplinary action against the employee on the basis that the allegations were false or brought the company into disrepute. In these cases, the employee can compel the employer to conduct the enquiry under the auspices of a commissioner appointed by the CCMA.

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The question of values and the nature of protected disclosures

The Companies Act includes protection of whistleblowers who report the same breaches that are covered by the PDA. They also, however, include reporting cases of contraventions of the Companies Act and numerous laws listed in Schedule 4 to the Companies Act. (These are mainly laws dealing with the protection of copyright and intellectual property).

Protected disclosures in the Companies Act also include the company’s failure to comply with statutory obligations or the contravention of legislation that is likely to expose the company to an actual or contingent risk of liability. Many companies draft their policies to include the additional issues listed by the Companies Act.

King IV and King V codes

The wording of many whistleblowing policies has also been influenced by provisions in Codes of Good Governance, such as the King IV Report on Corporate Governance (King IV).

One of the recommended practices in King IV is that ‘The governing body should exercise ongoing oversight of the management of ethics, and in particular oversee that it results in … the use of protected disclosures or whistleblowing mechanisms to detect breaches of ethical standards and deal with such disclosures appropriately.’

Similarly, in the recently published King V, the following is provided: ‘The use of protected reporting or confidential whistle-blowing mechanisms to detect breaches of ethical standards and dealing with such reports appropriately and in accordance with legal requirements.’

As a result, PDA policies are often drafted to include breaches of ethics.

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Ethics policies

The concept of ethical conduct is extremely broad and opens the door to numerous additional complaints being lodged as part of whistleblowing process. Ethics policies are often drafted to incorporate values that cover a wide range of behaviours such as treating one another with respect.

Including the reporting of ethics in a policy widens the number of complaints that can be referred, in terms of it, to almost all forms of conduct within an organisation.

These kinds of complaints are not protected by legislation, but their inclusion has the inadvertent effect of requiring that they be investigated in the same manner that a PDA complaint is treated and with the same form of protection being offered to those lodging complaints.

Grievances

Every kind of grievance regarding a manager’s alleged style of management can usually be categorised as being disrespectful or not in accordance with the company’s broadly stated ethical values.

It is the incorporation of these broader categories and making provision for these to be reported anonymously that is one of the factors giving rise to the proliferation of complaints and the conversion of what should be ordinary grievances into full blown investigations.

The PDA was not intended to deal with grievances. Its intention is largely to allow employees to expose criminal and other unlawful conduct perpetrated by other employees in the organisation or to report that the employer itself is engaged in the unlawful conduct.

Observer, not victim

In most instances the person lodging the report would not be the subject of the complaint or the “victim”. It is usually the complainant observing conduct being perpetrated by other individuals in the organisation.

In most instances the employee will not be the victim of such behaviour. Reports of bribery, corruption, illegal behaviour, damage to the environment and threats to health and safety will all fall within this category.

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The distinction between unfair discrimination and victimisation or bullying

The PDA allows for cases of unfair discrimination to be raised using the whistleblowing process.

If the company is engaged in discriminatory practices generally, then it would be appropriate that this is raised through the PDA channels. But where the complainant maintains that they are the victim of discriminatory conduct, there are other channels that should be used rather than the PDA.

Elimination of harassment

Unfair discrimination includes harassment based on a listed ground such as gender, race or sexual orientation. Most employers have adopted specific procedures to deal with sexual harassment. These procedures require that investigations are conducted in a more sensitive manner than an alleged fraud or corruption case.

With the adoption of the Code of Good Practice on the Elimination of Harassment in the Workplace, these policies may have been expanded to cover all forms of harassment based on a listed ground such as gender, race, sexual orientation or religious affiliation.

A victim of harassment on a listed ground should be directed to use the reporting procedures contained in the appropriate policy and not the whistleblowing policy.

Bullying

Many employers are also dealing with allegations of ‘bullying’ under whistleblowing policies. This is a misconception.

The reference to bullying appears in the Harassment Code and is applicable only to conduct directed at persons on one of the listed grounds in the Employment Equity Act, such as race, gender or sexual orientation and because of their membership of a designated group.

General allegations of bullying should be dealt with in terms of the grievance procedure. Only allegations of bullying based on being a member of a designated group should be dealt with under the harassment policy.

No allegation of bullying generally should be dealt with under whistleblowing policies.

This is the first in a series of two articles. Watch out for part 2, which outlines ways to mitigate the challenges discussed above.