The Protected Disclosures Act No. 26 of 2000 (the act) became
operative on 16 February 2001. It outlines procedures for employees
to disclose information pertaining to irregular or criminal conduct
committed by either their employers or another employee. The act
also provides a number of safeguards to protect employees who
decide to make disclosures.
Section 10(4)(a) of the act allows for the minister of justice
and constitutional development to issue practical guidelines to
employees explaining the provisions of the act and highlighting all
procedures available to employees who wish to disclose information.
Such guidelines were published on 31 August 2011.
The guidelines serve as an informative summary of the
State's views on the implementation of the act. Although
primarily directed towards employees, both the guidelines and the
act have significant implications for employers as well.
Implications of the guidelines for employers
The guidelines make it clear that, "every employer has a
responsibility to take all necessary steps to ensure that employees
who disclose [protected] information are protected from any
reprisals as a result of such disclosure". This responsibility
can be indirectly enforced through a number of the provisions in
the act, for example prevention of dismissal.
As such, the act and guidelines are clear that no employee may
be, "victimised or penalised by his or her employer as a
direct or indirect result of having made a disclosure in accordance
with any of the procedures provided for in the act".
To the extent that the employer victimises an employee, he or
she is entitled to the remedies available under section 4 of the
act. An employee may approach any court which has jurisdiction, or
follow any other procedure available in law, to enforce those
remedies. In this regard, the guidelines highlight a number of
other pieces of legislation which offer protection and means for
disclosing such conduct.
The employee also has recourse under the Labour Relations Act,
No. 66 of 1995 (the LRA). Importantly, the LRA provides that an
occupational detriment, other than dismissal, in contravention of
the act will constitute an unfair labour practice. Furthermore, the
LRA provides that a dismissal will be automatically unfair if the
reason for the dismissal is that the employee made a protected
disclosure under the auspices of the act. Signifi cantly, the LRA
also provides for a higher limit on compensation for automatically
unfair dismissals namely, a maximum of 24 months' remuneration
One of the ways in which an employee may make a protected
disclosure is by approaching an employer directly. An employee must
act in good faith when making such a disclosure in order for it to
be protected. The act does not require the employer to provide a
specifi c procedure in this regard. However, if the employer does
institute a specifi c procedure regarding disclosures, then the
employee is obliged to follow it when making a disclosure to ensure
it is a protected disclosure. This offers a control mechanism to
The act also allows employers to designate independent parties
to whom disclosures may be made. Thus the establishment of
anti-corruption hotlines by employers refl ects well on them as
they are seen to be actively complying with the ethos of the act.
In terms of the act an employer and employee cannot contract out of
In addition, an employer cannot include any terms which have the
effect of discouraging an employee from making disclosures in his
or her contract of employment. To this extent an employer cannot
escape the responsibility of taking all necessary steps to protect
employees. To ensure compliance in this regard an employer should
be seen to be promoting internal awareness about the act's
provisions as well as company procedures for making protected
The act also states that the State must provide a copy of the
guidelines to every employee. It is suggested that private sector
employers also take this step.
It is clear that, although primarily directed at employees, the
act has signifi cant implications for employers.
In particular, it: curtails an employer's ability to
circumvent the act; discourages employers from pressurising any
employee it suspects of making disclosures; and prevents an
employer from dismissing an employee for making protected
Furthermore, it places a general duty on employers to provide
protection to employees who make such disclosures. Given the
objectives of the act this should be seen as a positive
development, one that should be encouraged and adhered to by
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Employees must understand the notice periods stipulated by law. When an employee gives notice of their resignation to an employer, they is advising the employer that they will cease to work for the employer from a certain date.
Nigeria is a federal constitutional republic located on the west coast of Africa. Modern Nigeria has its origins as a British colony through the 19th and 20th century until it achieved independence in 1960.
The jurisprudential basis is pithily expressed as staying in sync with the global position on employment relationship, easily summed up as "International Labour Standard" and "International Best Practice".
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).