By Godfrey Kenneth Beni:
Thando worked as a senior accounts clerk for a Lilongwe-based mid-sized manufacturing company. He carefully handled payments, balanced financial ledgers, and kept an eye on things during a three-year period. He witnessed his manager falsifying invoices from a fictional company. He saw purchase orders approved for products that were never delivered. He saw the finance director approve payments to his own family members at greatly exorbitant amounts.
He calculated that his employer would suffer a loss of more than K50 million over the course of two years.
Thando wasn’t a disgruntled worker. He was not seeking monetary recompense. His only goal was to stop the fraudulent acts. He gathered his proof methodically. He produced copies of dubious invoices. He kept track of approvals, sums, and dates. He then went to the managing director.
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The managing director conveyed her appreciation. She promised to look into it. Nevertheless, she did nothing for three weeks.
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After that, Thando did what he thought was right. He formally reported the problem to the Bureau of Anti-Corruption. He turned in his supporting paperwork. He consented to serve as a witness. Two weeks later, he was summoned to the human resources office. He received a letter of termination alleging “gross misconduct” and “breach of confidentiality.” There was no investigation conducted. No hearing was conducted. There was no chance provided for him to defend himself. He was escorted off the premises by security personnel.
Thando filed a lawsuit alleging unjust termination. He was unsuccessful.
The court determined that his employer adhered to the contractual notice period. The court determined that there was no particular law that would shield an employee who reports internal malfeasance. Although Thando’s acts were morally admirable, the Employment Act (2000) did not specifically shield him from retaliation, the court noted with obvious unease.
Because he did the right thing, Thando lost his job and had no legal remedy. There is only one section in the Employment Act (2000) that deals with protecting whistleblowers. Employers are not allowed to punish workers for actions that comply with Part III of the Act, according to Section 12.
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Administration, or Part III, is concerned with labor officials, inspections, and making sure the Employment Act is followed. The safeguard offered applies specifically when an employee aids a labor official or reports a breach of the Employment Act. However, Section 12 does not provide protection if an employee discovers corruption, fraud, theft, environmental violations, and workplace safety issues outside the purview of the Employment Act, criminal activity, or unethical acts not protected by labor standards.
No other forms of whistleblowing are covered by the law. This is a big oversight. It is a critical flaw that places workers in a challenging situation: either disclose malfeasance and run the risk of losing their job, or keep quiet while the wrongdoing continues. A culture of fear is created when workers are not protected. Thando is not alone in his experience. Malawian employees witness fraud, corruption, risky behavior, environmental damage, and criminal activity at work every year.
Many opt to remain silent. Their financial obligations include providing for their family, paying for their education, and making mortgage payments. They can’t afford to become like Thando. When people voice concerns, they frequently face retaliation in the form of forced resignation, demotion, relocation to a remote office, unfair performance improvement plans, or outright firing. They discover that the law offers no protection when they attempt to contest these retaliatory acts.
Additionally harmful to employers is the lack of protection for whistleblowers. In order to avoid injury and legal problems, ethical employers want to be aware of fraudulent operations, safety risks, and corruption within their company. However, employees are unwilling to come forward in the absence of legal protections for whistleblowers, which keeps employers in the dark about problems until they become more serious. The economy will suffer greatly from the lack of protection for whistleblowers. Secrecy fosters corruption, workplace safety infractions are ignored until mishaps happen, and environmental damage continues because workers are afraid to speak up.
Rather than being a neutral issue, failing to safeguard whistleblowers actively encourages misbehavior. Unfair consequences result from the legal system’s protection gap. Judges recognize the injustice, but the lack of legal support forces courts to decide against morally honest whistleblowers. The Thando case is not an exceptional instance; rather, it is a foreseeable result of antiquated rules that have not been updated to meet the needs of modern society.
An employee is protected under Section 12 if they assist a labor officer during an inspection, report a violation of the Employment Act to a labor officer, consent to being examined by a labor officer, or provide records or documents that the labor officer requests. That’s it. The protection is only applicable in the context of labor inspections. Reporting to the Malawi Revenue Authority, the Environmental Affairs Department, the Anti-Corruption Bureau, the police, or any other regulatory entity is not covered.
Additionally, the protection’s reach is limited. It forbids “inflict[ing] a disadvantage” on the worker. This could involve being fired, demoted, or subjected to harassment. However, there is no mention of the treatment. Section 7 offers remedies for violations of Part II’s fundamental rights, including fair pay, discrimination, and forced labor. Section 12 offenses are not mentioned. Without the specific structure of Section 7, an employee who was retaliated against for helping a labor officer would have to file a separate claim, probably under unfair dismissal laws.
Enforcement is lax even in cases when Section 12 is applicable. The disadvantage must be demonstrated to have been caused “for anything done by the employee in pursuance of the provisions of this Part” by the employee. The employer will contend that the termination was due to misconduct, poor performance, or redundancy. The employee has an uphill battle in the absence of a demonstrable burden shift.
Malawi does not require the creation of a new framework. Proven models exist. The best in the region is the Protected Disclosures Act (2000) of South Africa. Employees who report criminal activity, noncompliance with legal requirements, miscarriages of justice, threats to health or safety, or environmental harm in good faith are protected. Disclosures made internally (to the employer), externally (to regulatory agencies), and even publicly (to the media) under certain conditions are all protected. Retaliation is forbidden, and workers who experience it may seek damages, reinstatement, or compensation.
Similar concepts underpin the Public Interest Disclosure Act (1998) of the United Kingdom. The public interest must be served by a qualifying disclosure. The employee must have a reasonable belief that the information is largely accurate. Disclosures to employers, designated regulators, and, in certain situations, the media are protected. Both models are functional. Both have existed for more than 20 years. Both offer a model that Malawi might modify with only slight changes to the Employment Act.
An astute lawyer might try to fit the termination of a whistleblower inside the current Employment Act regulations. But any endeavor has serious limitations. Firstly, unfair termination under Section 58: A dismissal that violates Section 57 is deemed unfair. Whistleblowing is not one of the reasons listed in Section 57(3) that are deemed unacceptable grounds for termination. Whistleblowing may be interpreted by a court as “the exercise of any of the rights specified in Part II of the Labour Relations Act” or as “the filing of a complaint” under Section 57(3)(g), however this meaning might be stretched.
The Labor Relations Act’s rights do not apply to reporting corruption; rather, they are related to trade union activity. Although it is not specifically related to retaliation against whistleblowers, filing a complaint under Section 57(3)(g) relates to concerns about laws, rules, or collective agreements. Courts have not come to a decision on this issue, and the phrasing is ambiguous. Second, constructive termination under Section 60: An employee cannot claim constructive dismissal if they are subjected to retaliation but choose not to quit. A constructive dismissal claim can be possible if the employee quits because the workplace became intolerable after the whistleblower.
The worker must, however, prove that the employer’s behavior rendered it unreasonable for them to stay on. The employer may contend that rather than being the target of retaliation, the employee became difficult to manage after making “unsubstantiated claims.” It is the employee’s job to provide evidence.
Whistleblowing is not a protected ground for discrimination under Section 5. Section 5 will not apply unless the employee can show that the retaliation was really motivated by considerations such as race, gender, handicap, or another designated cause.
Aiding labor officials in enforcing the Employment Act is the only way that Section 12 victimization can occur. Corruption, fraud, safety infractions outside of the Employment Act, and environmental damage are not covered.
The legal loopholes are insufficient, requiring creative interpretation, producing inconsistent outcomes, and burdening individuals who have already taken a significant risk by speaking up.
The absence of whistleblower protections is a liability rather than an advantage for companies. If an employee witnesses fraudulent activity, they will either keep silent or let it continue or disclose it to the outside world, which could damage the company’s reputation and result in legal ramifications. Neither situation is advantageous. Employees have a third option when a clear internal reporting system and a promise not to retaliate are put in place: report the problem internally, find a solution, and carry on with their work.
Workers should be aware of warning indicators that are specific to them. Make sure you document all information, including dates, times, amounts, and identities, and maintain copies of pertinent records if you see misbehavior at work. It’s crucial that you don’t rely only on your memory or expect your employer would protect you. Before taking any action, it is advisable to consult a labor official or legal professional about your particular situation. There are real risks involved, and the legislation is unclear. Parliament must amend the Employment Act to include a particular clause protecting whistleblowers in order to remedy this problem.
A protected disclosure should be defined in the new section as the truthful reporting of criminal activity, noncompliance with legal requirements, injustices, risks to one’s health or safety, or environmental damage. Disclosures made to regulatory agencies, the employer, and, in some cases, the public should all be protected. Any kind of retribution, such as dismissal, demotion, suspension, harassment, or any other kind of disadvantage, shall be expressly prohibited by the clause. Once the employee proves they disclosed a protected disclosure and suffered consequences, the employer should bear the burden of evidence. It should also provide practical remedies including back pay, reinstatement, distress compensation, and punitive damages for serious retaliation.
It is not necessary to wait for Parliament in order to be a proactive employer. Whistleblowers within your organization can be protected right away. Make a policy for whistleblowers. Make it very clear that an employee who discloses a suspected legal violation, fraud, corruption, health and safety hazards, or environmental damage in good faith will not be subject to any kind of retaliation. Describe the different channels for reporting: an ethics officer, a confidential hotline, an external regulating authority, and a supervisor who is not involved. Promise to look into every report in a timely and unbiased manner. Publicize the policy and train all supervisors on how to apply it. Create an environment that promotes safe reporting. Employees who report misconduct should be thanked rather than punished. Maintaining anonymity is crucial. Make sure that investigations are thorough and timely. While keeping disciplinary procedures private, let the reporter know the results. Retaliating managers ought to be held responsible and possibly fired.
Keep thorough records of all reports and related actions. Record employee reports, investigative procedures, findings, and any follow-up actions. This comprehensive record protects the employee from allegations of malice and the employer from accusations of passivity. This kind of policy also shows how seriously the employer takes reports, which may have an effect on any retaliation-related legal action.
Additionally, while awaiting legislative changes, the judiciary should interpret current legislation broadly. For instance, whistleblowing disclosures to regulatory agencies may be covered by Section 57(3)(g), which refers to “filing a complaint or participating in proceedings against an employer for alleged legal violations”. A court that adopts this approach would send a clear message and give whistleblowers prompt assistance.
Thando did all the right things. He saw wrongdoing. He gathered evidence. He made the internal company aware. He contacted the Anti-Corruption Bureau after getting no answer from within. He showed courage, integrity, and a sense of duty to the community. His employment was terminated. He was unable to contest the ruling. He was not supported by the legal system.
Positively, workers who assist labor officers are protected by the Malawi Employment Act. Unfortunately, it does not protect workers who expose wrongdoing, corruption, safety violations, environmental damage, or unlawful activity.
Parliament must take action on this matter. Employers shouldn’t put things off. Workers who see wrongdoing should know that although they may not be protected by the law, their courage is admirable.
Act in a morally responsible manner. Report any misbehavior. Maintain thorough records. Before speaking up, speak with a legal expert. And support laws that will prevent people like Thando from suffering the same fate in the future.
The author is a Human Resource Practitioner
Feedback: kennethbeni35@gmail.com
*The author is a Human Resource Practitioner
