KATE COLLIER | The case for building whistle-blower confidence to enhance occupational health and safety

The processes for reporting dangerous workplaces can significantly differ from one organisation to another. Notably, there seems to be a lack of consideration for an anonymous reporting mechanism, leaving individuals raising concerns of being vulnerable to potential identification by others within the organisation who may take issue with the report.

There is no apparent contemplation of an anonymous process through which reports of dangerous workplaces can be provided and those raising the alarm are not protected from identification from other personnel who may be aggrieved by the report.

Section 26 of the Occupational Health and Safety Act (OHSA) prohibits any victimisation, by an employer, against an employee who discharges a duty or exercises rights under the OHSA. However, this may be of little comfort to employees who are genuinely scared, or intimidated against, raising concerns about workplace safety or instructions issued by supervisors which may be unsafe.

South Africa’s existing Protected Disclosures Act is designed to safeguard whistle-blowers from any form of retribution by their employers from an “occupational detriment”, which is any negative action taken against a whistle-blower, other than dismissal. This includes disciplinary action, suspension, demotion, harassment or intimidation in the workplace.

Second, outside reporting of immediate possible harm and the use of the right to refuse work, where an element of protection does already exist, employers should consider the potential value of the use of whistle-blowing systems and whistle-blower protections as part of accident and incident investigations.

Though not free from its own shortcomings, there is scope for employers and employees alike to assess the usefulness and appropriateness of the Protected Disclosures Act in the context of occupational health and safety management.

In addition, when developing systems for employees to exercise their rights under health and safety legislation, or whether employers implement systems in line with best practice in excess of which the legislation requires, the guidelines in ISO 37002: Whistle-blowing management systems — guidelines (ISO guidelines) can be relied upon. This document “provides guidance for organisations to create a whistle-blowing management system based on principles of trust, impartiality and protection”.

The ISO guidelines provide direction on establishing, implementing and maintaining effective whistle-blowing management systems. Within the contemplated management system, a structured framework is set out in respect of receiving, assessing and addressing whistle-blower reports, as well as concluding cases involving whistle-blowing.

The policies and procedures that constitute a whistle-blowing management system promote early reporting, preventing detrimental treatment of whistle-blowers and foster a culture of safety reporting.

The processes and principles set out in the ISO guidelines would enhance workplace safety through early identification and remedial action in response to harm or risk of harm to safety, as well as safe working practices. The guideline provides a clear process for receiving and assessing reports of wrongdoing, including safety-related issues that provides for prompt evaluation and action, increasing an organisation’s capacity to intervene in unsafe circumstances before harm occurs.

Where an employee is apprehensive about making a report of an unsafe work practice or environment to an immediate supervisor for any reason, it is advantageous to establish additional reporting channels that are visible, accessible and secure. The ISO guidelines set out practical recommendations as to the types of channels that may be considered for this purpose, as well as the factors to consider in maintaining the integrity and confidentiality of any disclosures made through those channels.

Making employees aware of existing reporting channels, be it manually written complaints in a record book or updated channels via an online portal, is crucial to avoid employees claiming impossibility for reporting a complaint or concern. Employers should remain mindful of the multi-language requirements of the workforce and facilitate engagements in a language that the whistle-blower is comfortable with.

Though employees bear a statutory duty to report actual or perceived unsafe or unhealthy situations, many fail do to so, citing intimidation as the reason. Facilitating anonymous and confidential disclosures, as well as continued information exchange is advantageous in circumstances where harm has occurred for the purposes of gathering evidence of an incident, while mitigating circumstances that lend themselves to employees claiming intimidation as the basis of their failure to report.

In turn, this lays a foundation for robust accident and incident investigations. Such guidance covers the information that should be sought from whistle-blowers to ensure that an organisation has information at hand to properly assess the incident itself, as well as the likelihood of the whistle-blower suffering detrimental conduct as a result of making the disclosure, and the severity of the detriment should it occur.

Establishing protocols or guidance on how to engage with a whistle-blower during and after a disclosure will limit or avoid compromising accident and incident investigations. This enables an organisation to prioritise reports based on risk.

Additionally, the type and frequency of feedback that should be provided to the whistle-blower during an investigation into a reported issue, builds and maintains trust and provides an opportunity for a whistle-blower to share additional information.

A fast and reliable method of collecting and securing evidence of an accident or incident empowers an organisation to act swiftly. Assessing appropriate measures in addressing dangerous working places or practices should include:

• considering factors such as whether the incident necessitates additional procedures such as disciplinary proceedings;
• assessing if the incident involves a criminal offence and warrants referral to, for example, the department of mineral resources and the South African Police Service;
• considering the timing of the incident, its potential to disrupt business activities, immediate threats to health and safety, human rights, or the environment; and
• addressing the need to preserve evidence.

There are, of course, possible risk areas if this is not managed carefully, particularly where the disclosures are not made in good faith, regulators’ intervention that may require identification of complainants (including where incidents are subject to statutory investigations or inquiries — particularly as the current legislative regime does not expressly provide for anonymity, though employers may offer this to employees to encourage disclosure) and whether a system designed to protect employees against retaliatory conduct by an employer would work optimally in an environment where the protection may be required from other employees or supervisors, and the employer is already committed to protection of employees who raise health and safety concerns.

The existing legislative frameworks do not provide protection or clear consequence for retaliation beyond the realms of the employment environment and in respect of which employers may have little influence or control.

Anticipated changes to whistle-blowing legislation may then be of interest to health and safety managers and employers, particularly if legal reforms introduce stronger penalties and consequences for those who retaliate against whistle-blowers, serving as a more effective deterrent, and whether legislation will require financial and legal support mechanisms to those who expose wrongdoing coupled with the possibility of rewards and incentives to encourage individuals to step forward.

• Kate Collier is a partner at Webber Wentzel