Experts Highlight Importance Of Structured Whistleblowing Policies For Better Corporate Governance

There are two ways to mitigate the proliferation of whistleblowing complaints in the workplace. The first is in the drafting of whistleblowing and other policies. The second is in the introduction of a ‘gatekeeper system’ that redirects complaints that are not strict Protected Disclosures Act (PDA) complaints to the grievance channels or other reporting processes. We are of the view that there should be three or perhaps four policies.

Governance by policies

Protected disclosure

The principal aim of a protected disclosure policy is to deal with complaints that fall directly within the defined parameters of the PDA and to provide protection to whistleblowers. These policies would focus on the nature of the complaints that can be lodged and confine them to PDA complaints.

This would encourage employees to report fraud, theft, corruption and illegal activity committed by other employees. The policy would set out the process that will be followed as prescribed by the PDA and list whistleblower protections.

Harassment

The employer should also adopt a harassment policy to deal with bullying and harassment based on a listed discriminatory ground. This would also cover sexual harassment, with specific procedures for dealing with these complaints in a sensitive way.

Complaints under this policy would be limited to harassment, including bullying, on a listed ground. Employees reporting these kinds of complaints would also enjoy protection from retaliation.

Ordinary grievances

There should be an ordinary grievance procedure to deal with ordinary complaints. If an employee alleges that they are the victim of bullying or that there is unacceptable conduct by their manager, this should be referred through the grievance procedure.

Ethics

Assuming that the company wishes to incorporate the King IV and V principles, a separate method of reporting ethical breaches should be established. This could be part of the code of ethics or a separate reporting mechanism.

Many employers have sought to simplify matters by drafting a single policy to cover the issues specified in the PDA as well as harassment and ethical breaches. This has led to a significant broadening of the complaints that need investigation and the migration of what should be ordinary grievances into PDA complaints.

Separating out these various processes will ensure that only serious breaches envisaged by the PDA and the Harassment Code will be investigated and procedurally dealt with. Only employees reporting these kinds of offences will enjoy protection and be afforded the right to use the mechanisms provided for in the PDA and Labour Relations Act (LRA).

Further measures through gatekeeper provisions

The proliferation of whistleblowing complaints can also be dealt with via the introduction of ‘gatekeeper provisions’. A sophisticated reporting system would require a complainant to answer a series of questions. Depending on the answers, the complainant would be directed to the correct reporting mechanism.

Each of these policies should have gatekeeper provisions that would direct the complainant to the applicable process.

An employee alleging that they are the victim of sexual harassment would be directed to report the matter under the sexual harassment policy or harassment policy.

An employee alleging bullying under the harassment policy would be required to specify the listed grounds on which the bullying was taking place. If the bullying was not based on one of the listed grounds, they would be directed to the grievance procedure.

Clarifying when anonymous reporting is appropriate

Anonymous reporting is not provided for under the PDA and does not align with the LRA, as protection can only be afforded to employees whose identity is known.

It may be appropriate to include provision for anonymous whistleblowing where the employer wants to encourage the disclosure of fraud or corruption perpetrated by other employees, and there is a fear of retaliation for doing so.

Anonymous reporting is not appropriate where a person claims that they are the victim of harassment on a listed ground. In this case, the identity of the person is needed to investigate the complaint. It is also not appropriate under the grievance procedure.

Managerial misconduct

There is a trend of disaffected employees making anonymous whistleblowing complaints regarding the conduct of a manager. A generalised allegation is made that a manager is engaged in discriminatory behaviour or bullying.

While discriminatory behaviour falls within a protected disclosure and requires investigation, it is extremely difficult to investigate when a complainant does not identify themselves to be interviewed, and where no detail of the alleged conduct is provided.

The employer is then obliged to interrogate a number of people in the relevant department to establish the veracity of the allegations. This requires the allocation of time and resources. It also causes substantial stress for the manager concerned and, to an extent, undermines their authority as they are ‘under investigation’.

In most cases, there is no evidence of alleged discriminatory conduct. There may be unhappiness due to managerial style or how a new manager is tackling an underperforming department. Considerable time and money are spent on the investigation and the workplace is disrupted.

If the employer wants to make provision for anonymous reporting, it should only be in terms of the PDA procedure, and the complainant should be interrogated as to why they wish to remain anonymous. They should be advised that the company is committed to not retaliating against genuine whistleblowers and that it will be hampered in its investigation if the person does not identify themselves.

If the complainant still wishes to remain anonymous, they should be directed to provide specific examples of the alleged misconduct to determine if the issue falls within one of the protected disclosure categories. If the complaint does not qualify, then there is no obligation on the employer to investigate it.

If an anonymous complainant makes a broad allegation without any facts to substantiate the allegation, they should be warned that failure to provide specific details will result in the employer being unable to investigate the complaint. If they do not provide any details, it is not incumbent on the employer to start a wide-ranging investigation to establish the veracity of the complaint. The complaint should be dismissed.

Conclusion

A proliferation of whistleblowing complaints has arisen due to the deliberate abuse of the processes, the incorrect drafting of whistleblowing procedures to cover complaints outside the PDA, the resulting overlap with other procedures, and the failure to provide clear guidance and gatekeeper provisions that would direct complainants to the correct process.

Matters that should be categorised as grievances have found their way into the PDA procedures, which are often drafted to allow anonymous reporting. This has encouraged anonymous reporting of wide-ranging conduct which, in turn, has afforded protection to employees who wish to use the process to retaliate against an unpopular manager.

These challenges can be resolved through the clear drafting of various workplace policies and the adoption of gatekeeping processes that direct complainants to the correct channels.