The Protected Disclosures Amendment Bill: The whistle gets louder


By Dave Pattle and Grant Wilkinson

The Protected Disclosures Act (PDA) essentially allows employees to make certain disclosures to various bodies about their employers’ conduct while being protected from any disciplinary action or any form of occupational detriment. The public have now been asked to offer comment on proposed amendments to this PDA. In short, the proposed amendments seek to extend the scope of the Act, include a greater number of people and provide more scenarios under which protection is sought. Read on to find out about the four areas of the Protected Disclosures Amendment Bill (Bill) that you need to know.

1. Extension pertaining to people

Currently, the PDA applies to the traditional employment relationship only. The amendments propose to extend the scope to include people who would typically fall outside this traditional model. It’s proposed that the definitions of “business”, “worker” and “temporary employment service” be included.

2. Extension of circumstance

“Occupational detriment” as a definition would need to be extended to encompass the potential detrimental behaviour suffered by those who previously fell outside of the scope of the Act. It’s also proposed that the definition of “disclosure” be amended.

3. Proposed provisions

The amendments not only suggest a few “tweaks”, but also propose a couple of new provisions:

  • The Bill proposes that employers have processes in place to deal with receipt and response to information about improprieties.
  • The possibility of joint liability is created under certain circumstances.
  • A duty to investigate a disclosure is created under certain circumstances.
  • Remedies are extended to independent contractors, consultants and agents.
  • The Act does not protect persons from criminal and civil liability. It is proposed that this protection is inserted into the Act.

4. Specifics of the Bill

The Bill proposes several specific amendments to the PDA:

  • Disclosure now includes conduct of an employee or a worker,
  • “worker” has now been included and specifically includes:
    – independent contractors,
    – consultants,
    – agents, or
    – persons rendering services to a client while being employed by a temporary employment service.
  • Where an employer under the express or implied authority or with the knowledge of a client subjects an employee or a worker to an occupational detriment, both the employer and the client are jointly and severally liable.
  • If the Labour Court is satisfied that an employee/worker has been subjected to an occupational detriment on account of a protected disclosure, it may make an order that is just and equitable in the circumstances, including:
    – Payment of compensation
    – Payment of damages, and
    – An order directing the employer to take steps to remedy the occupational detriment
  • Every employer must authorise appropriate internal procedures for receiving and dealing with information about improprieties and take reasonable steps to bring the internal procedures to the attention of every employee and worker.
  • An employee or worker who intentionally discloses false information knowing it to be false or not knowing or nor believing it to be true is guilty of an offence and is liable on conviction to a fine or to imprisonment to a period not exceeding 2 years or to both a fine and such imprisonment.

This article first appeared onĀ HR Pulse.

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