Weaponising Whistleblowing – A Double-edged Sword For Employers

Whistleblowing is a cornerstone of ethical business, intended to empower employees to speak up about wrongdoing without fear of reprisal. South Africa's legislative framework, particularly the Protected Disclosures Act ("PDA") and the Labour Relations Act ("LRA"), has evolved to provide robust protections for those who raise genuine concerns. But as with any well-intentioned system, there is a growing risk: the very protections designed to shield the brave can be manipulated by the opportunistic.

Background: The promise of protection

At its heart, whistleblowing law is about encouraging transparency and accountability. The PDA and LRA make it clear that employees who disclose information about criminal conduct, corruption, or other serious improprieties are protected from "occupational detriment" - that is, any form of workplace retaliation, including dismissal, demotion or harassment. These protections are vital for fostering a culture where employees feel safe to report misconduct, ultimately benefiting both organisations and society at large.

Section 188A of the LRA, in particular, was introduced to strengthen these protections. It allows employees who believe that disciplinary action against them is a reprisal for whistleblowing to request that their hearing be conducted by an independent arbitrator at the CCMA, rather than internally. The intention is clear: to ensure fairness and impartiality, especially where the stakes are high and the risk of victimisation is real.

The reality of abuse

However, the practical reality is more complicated. Increasingly, employers and HR professionals are encountering situations where employees facing legitimate disciplinary action suddenly claim whistleblower status. Often, this occurs at the eleventh hour - just as a performance or misconduct hearing is about to proceed, a complaint is lodged against a manager or the organisation, and the employee insists that any further action would be unlawful retaliation.

This tactic, sometimes referred to as "weaponising whistleblowing", can be highly disruptive. Section 188A, while well-intentioned, is particularly vulnerable to abuse. By simply alleging that a disciplinary process is linked to a protected disclosure, an employee can trigger a halt to internal proceedings and force the matter into the slower, more complex CCMA system. This can delay resolution for months, while the employee remains on the payroll and the underlying issues go unaddressed.

The impact on organisations

The consequences of such abuse are far-reaching. First, it undermines the credibility of whistleblowing frameworks. When managers and colleagues see the system being used as a shield against accountability, trust is eroded - not just in the process, but in the organisation's commitment to fairness. Genuine whistleblowers may become reluctant to come forward, fearing that their concerns will be dismissed as tactical manoeuvring rather than legitimate alarms.

Second, the abuse of whistleblower protections can paralyse normal disciplinary processes. HR professionals and managers may become hesitant to address poor performance or misconduct, worried that any action could be construed as retaliation. This "chilling effect" can lead to a culture of impunity, where underperformance or even serious wrongdoing goes unchecked.

Third, the resource implications are significant. Employers must launch investigations, sought legal advice, and hearings are often postponed or duplicated. The time and cost involved can be substantial, diverting attention from core business priorities and, in some cases, damaging morale across the workforce.

Striking the right balance

None of this is to suggest that whistleblower protections should be weakened. On the contrary, they remain essential for rooting out corruption and safeguarding ethical standards. But the system must be balanced - robust enough to protect the genuine, but resilient enough to deter the opportunistic.

For employers and HR professionals, the challenge is to distinguish bona fide disclosures from tactical complaints. This requires a careful, structured approach:

• Clear policies: Ensure that whistleblowing policies clearly define what constitutes a protected disclosure, and distinguish these from ordinary grievances or performance issues.
• Structured reporting: Use formal channels and require specific information - vague or last-minute complaints should be scrutinised for substance and timing.
• Independent assessment: Where a disclosure is made in the context of disciplinary action, consider appointing an independent investigator to assess its merits, separate from those handling the disciplinary process.
• Documentation: Keep detailed records of all steps taken, both in investigating the disclosure and in managing the disciplinary process. This is vital if the matter is later challenged.
• Training: Regularly train managers and staff on the difference between whistleblowing and grievances, and on the organisation's procedures for handling both.

Conclusion: The way forward

The weaponisation of whistleblowing is a real and growing challenge, but it is not insurmountable. Recent developments in law and practice are beginning to push back against abuse, emphasising the need for evidence and good faith when invoking whistleblower protections. Employers who act methodically, transparently and fairly can protect both their organisations and the integrity of the whistleblowing framework.

Ultimately, the goal is to ensure that whistleblowing remains what it was always intended to be: a shield for the righteous, not a sword for the devious. By reinforcing clear standards and maintaining a culture of integrity, organisations can support those who speak up for what's right - while ensuring that the system is not hijacked by those seeking to avoid accountability.

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.