The issue of whether an employee could be disciplined for making internal disclosures, was discussed in the case of City of Tshwana Metropolitan Municipality v Engineering Council of SA & another.
It had to be decided, whether an electrical engineer employed by a municipality, was entitled to protection from the Protected Disclosures Act 26 of 2000, for making certain safety disclosures, in relation to his company, to the Department of Labour as well as his own professional governing body.
For an employee to be protected in terms of the PDA, certain requirements need to be met.
- The employee needs to have acted in good faith;
- The employee had to have reasonably believed that the information disclosed and allegations made, were substantially true;
- The employee could not have acted out of personal gain;
- The employee had to have made a prior disclosure to his employer of substantially the same information;
- The disclosure must relate to an impropriety.
The municipality contended that the employee had failed to comply with the final two requirements and was therefore not entitled to protection under the PDA.
They argued that the Municipality had always been aware of the employee’s views regarding the safety issues and therefore, nothing had been disclosed to them.
The Court found, that the employer and the relevant officials thereto, had disregarded the employees concerns that were made aware to them. Acordingly, the Court found that the employee had made the employer aware of his concerns, and no action had been taken upon it by the employer. The employee’s disclosure was therefore protected by the PDA, and the employee could not be disciplined by his employer.