Picking up the pieces after speaking up
SA is rapidly moving towards a more enlightened view of whistleblowers in which they are neither demonised as disloyal snitches, nor glorified as courageous heroes, says an expert.
They should be “normalised as ordinary employees doing a regular, accepted part of their jobs”, says Mary Inman from the international whistle-blowing practice Constantine Canon.
In SA, there are at least 10 clear whistle-blowing cases in the labour court and one in the labour appeal court. But normalisation is not close at hand; there has to be legal protection for whistle-blowers and society has to treat them with respect, says Corruption Watch executive director David Lewis.
Corruption Watch gets between 100-150 reports a week. Not all whistle-blowers are “as pure as driven snow”, Lewis says, alluding to former Bosasa COO Angelo Agrizzi’s testimony before the Zondo commission. But all authentic whistle-blowing contributes to a more ethical society.
In most cases, they do the “defensible, constitutionally justified thing”, says disability lawyer Peter Strasheim.
Employers typically “deny, delay, defend, dismiss”, he says, referring to a legal blog published by UK law firm Simons, Muirhead and Burton.
A survey conducted in the UK by an all-party parliamentary group looking at the costs of whistle-blowing found that out of 336 whistle-blowers, 77.8% declared that the organisation had retaliated against them, 14.2% indicated that the organisation was not supportive, and 5.2% felt supported.
SAA whistle-blower Cynthia Stimpel says: “Mostly, when a whistle-blower is reinstated in their job, the company finds a way to move them into another department and find something else wrong so they can eventually work them out.”
She lifted the lid on an alleged unlawful tender at the airline.
A study by Marianna Fotaki of Warwick Business School and Kate Kenny of Queen’s University Belfast found that 62% of whistle-blowers reported being demoted or given more menial tasks and almost all were eventually dismissed or resigned.
After speaking on a media platform and at the Zondo commission, other whistle-blowers approached Stimpel to share their stories. She formed a support group and is about to launch a company, Phakama (Nguni for “rise up”), with the aim of attracting pro bono psychiatric-psychological and legal support and financial assistance, advocating for changes to the legislation and compiling a detailed guide for whistle-blowers.
“Informal blacklisting is common,” Georgina Halford
Hall from Whistleblowers UK says. A former whistle-blower herself, she was told by recruitment agencies: “Getting a whistle-blower re-employed is practically impossible.”
Whistle-blowers experience discrimination at every level. Stimplel says even the Protected Disclosures Act does not protect whistle-blowers.
“We will be making a proposal to the Ethics Institute and other organisations the Zondo commission is one of them to say the act is not doing the work it is supposed to do.
“There should be no relation to a person’s conduct in the workplace,” Stimpel says.
“In my case, I was charged for misconduct, despite all the facts and the paper trail, and something similar is coming up in other peoples’ stories.”
Strasheim says: “A whistleblower who is exposed to occupational detriments, such as prejudice or discrimination, can bring a case against their employer. But usually the harmdetriments are so bad that the person has a breakdown.”
Amendments to the Protected Disclosures Act are necessary to take into account people outside the employment relationship, such as ordinary citizens and independent contractors, Lewis says.
In the US, the Securities and Exchange Commission pays whistle-blowers a share of the money their actions-whistleblowing enables the state to claw back. This is a recent intervention, and is apparently working. Lewis believes ways of rewarding whistle-blowers financially can be devised in SA.
I WAS CHARGED FOR MISCONDUCT, DESPITE THE FACTS AND PAPER TRAIL, AND SOMETHING SIMILAR COMES UP IN OTHER STORIES