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[2020] ZALAC 27
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Baxter v Minister of Justice and Correctional Services and Others (DA1/2019) [2020] ZALAC 27; [2020] 10 BLLR 968 (LAC) ; (2020) 41 ILJ 2553 (LAC) (18 May 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Reportable
Case
no: DA1/2019
In
the matter between
JAMES
PATRICK BAXTER
Appellant
and
THE
MINISTER OF JUSTICE AND
CORRECTIONAL
SERVICES
First Respondent
THE
ACTING NATIONAL COMMISSIONER
DEPARTMENT
OF CORRECTIONAL SERVICES
Second
Respondent
THE
REGIONAL COMMISSIONER
KWAZULU
NATAL:
CORRECTIONAL
SERVICES
Third Respondent
Heard:
10 March 2020
Delivered:
18 May 2020
Summary:
Protected Disclosures---employee disclosed some irregularities in the
recruitment process to his superiors----such constituting
disclosures
in terms of the Protected Disclosure Act ---employee had reasonable
belief information disclosed showed or tended to
show manipulations
in appointments process---‘Reason to believe’ not to be
equated to the correctness of the information---employee
disclosed
truthful information thus protected.
Protected
disclosure---requirements---section 8---disclosure in good
faith---employee acting partly out of ulterior motive--- ulterior
motive not necessarily the same as acting in bad faith --- bad faith
referring to dishonest intention or corrupt motive---information
disclosed truthful---disclosures made in good faith and protected by
the PDA.
Causal
link between disclosures and occupational detriment---determination
whether disclosures main, dominant, proximate or most
likely cause of
the dismissal---court finding that in all probabilities dismissal on
account of such disclosures---most of the
charges covering the true
reason for dismissal--- charges served as a secondary reason
subordinate to the most proximate or dominant
reason---Dismissal
automatically unfair in terms of s 187(1)(h).
Coram:
Waglay JP, Davis JA and Murphy AJA
JUDGMENT
MURPHY
AJA
[1]
This
appeal requires determination of the reason for the dismissal of the
appellant. The appellant contends that his dismissal was
automatically unfair being one proscribed by section 187(1)(h) of the
Labour Relations Act
[1]
(“the
LRA”) because he was dismissed for making a series of protected
disclosures as defined in the Protected Disclosures
Act
[2]
(“the PDA”). Section 187(1)(h) of the LRA in relevant
part provides that a dismissal is automatically unfair if the
reason
for the dismissal is a contravention of the PDA by the employer, on
account of an employee having made a protected disclosure
defined in
the PDA. The respondents contend that the disclosures made by the
appellant were not protected by the PDA and that he
was dismissed
because he was found guilty of misconduct.
[2]
The Labour Court
(Cele J) rejected the appellant’s argument that his dismissal
was automatically unfair in terms of section
187(1)((h) of the LRA
and held that his dismissal was substantively and procedurally fair.
The appellant appeals against this order.
The
question for determination is whether the appellant’s dismissal
would have occurred if the appellant had not made the
protected
disclosures and, if not, whether such disclosures, rather than the
alleged charges of misconduct, were the main, dominant,
proximate or
most likely cause of the dismissal.
Background
[3]
The appellant, who at the time of his dismissal was employed as the
Area Commissioner
– Kokstad, of the Department of Correctional
Services (“the department”), contends that he was
dismissed because
he made protected disclosures to the second and
third respondents (the National Commissioner and the Regional
Commissioner KwaZulu-Natal
of the department respectively),
concerning irregularities in appointments to vacant posts in the
department. He alleged in the
alternative that his dismissal was
substantively unfair as no fair reason for the dismissal existed and
was procedurally unfair
on grounds that the disciplinary enquiry was
held beyond the prescribed time limits and was not authorised or
procedural in terms
of the relevant legislation.
[4]
The appellant commenced employment with the department as a warder at
St Albans Prison,
Port Elizabeth in 1986. Over the years he was
promoted through the ranks and in January 2007 was appointed to the
position of Area
Commissioner in the Kokstad Management Area,
KwaZulu-Natal.
[5]
The third respondent (“Nxele”) was the Regional
Commissioner for KwaZulu-Natal
and the appellant’s immediate
superior. The relationship between the appellant and Nxele was
friendly and collegial until
the events leading to the appellant’s
dismissal.
[6]
As part of his responsibilities as Area Commissioner, the appellant
from time to time
served on interview panels for appointments in
respect of vacant posts in which he had an interest. During 2013-2014
discord arose
between the appellant and Nxele with regard to the
appointment of five employees to various posts in the department.
These employees
were Messrs Mnguni, Mdlalose, Mathenjwa, Mbanjwa and
Mchunu. The contested protected disclosures relate to alleged
irregularities
in these appointments.
The
appointment of the Regional Co-ordinator: Security, KZN Region –
Mnguni
[7]
In May 2013, the appellant was a member of the panel that interviewed
applicants for
the post of Regional Co-ordinator: Security, KZN
Region. After the interviews, the panel recommended the appointment
of the highest-scoring
candidate, S Pillay, to the post. As
alternatives, the panel recommended P.Z. Marau in second place and
M.A.F. Mnguni in third
place. The scores and ranking are reflected in
the interview sheets completed and signed off by all the members of
the panel.
[8]
On 27 June 2013, unbeknown to the appellant at the time, Nxele signed
a memorandum
purporting to represent the deliberations of the panel
but which recommended the appointment of Mnguni, rather than Pillay,
and
that Pillay or Marau be appointed only in the event of Mnguni
declining the appointment.
[9]
The signed memorandum differs from a different unsigned version of it
recommending
(in keeping with the interview sheets) the appointment
of Pillay, which the appellant testified was sent to him on his phone
by
Pillay’s wife in January 2014. The appellant contends that
the unsigned memorandum reflects the true decision of the panel.
The
existence of the unsigned memorandum correctly reflecting the
deliberations and recommendation of the interview panel, the
appellant submits, indicates the probability that someone in the
chain of authority wanted Mnguni appointed and gave instructions
for
an alternative memorandum to be drafted.
[10]
The appellant testified that in July- August 2013, at a meeting at
the Karridene Hotel, he questioned
Nxele about the failure to appoint
Pillay and the appointment of Mnguni. According to the appellant,
Nxele did not explain the
deviation from the recommendation of the
panel but informed the appellant that he should tell Pillay that he
would be appointed
to another position. Nxele denied that the
conversation at the Karridene Hotel took place and maintained that
the interview panel
had indeed recommended Mnguni. However, Nxele was
not a member of the interview panel and the respondents did not call
any other
member of the panel to confirm his version, despite it
being put to Nxele that he could not comment decisively on whom the
panel
had recommended. Neither party called the chairperson of the
interview panel, Mr. Davids, to testify about which memorandum was
the correct one. The appellant submits that an inference can be drawn
that Nxele was party to altering the recommendation.
The
appointment of DD: Head Correctional Centre (Ebongweni, the C-Max
prison) - Mathenjwa
[11]
In November 2013 the appellant sat on a shortlisting panel and
shortlisted various candidates to be
interviewed in respect of the
post DD: Head Correctional Centre (Ebongweni, the C-Max prison), a
post falling directly under the
appellant’s management.
[12]
The post required,
inter alia
, a NQF level 6 qualification in
behavioural science and seven years relevant experience in a
supervisory post. The six shortlisted
candidates were all existing
employees of the department, and the filling of the post was,
therefore, a promotion process. Mathenjwa
applied for the post but
was not shortlisted as he did not meet the requirements for the post
as he held only a B. Admin degree
and no qualification in behavioural
science. The appellant explained during his testimony that the
extreme conditions and the nature
of the criminals incarcerated in a
maximum-security prison justify the requirement of a degree in
behavioural science.
[13]
On 23 November 2013, Nxele removed from the original shortlist for
this post three of the qualifying
candidates who met the selection
criteria: M. Diko, K.J Godden and A.M.Z Mbono. Nxele mentioned to the
appellant that he wanted
Mathenjwa to be added to the shortlist.
Mathenjwa subsequently appeared on a new shortlist.
[14]
The new shortlist was signed by only two of the seven shortlisting
panel members. The appellant testified
that he could not recall if he
was part of the second shortlisting process but intimated that
because his signature was not appended
to the shortlist, he may not
have been.
[15]
The appellant sat on the interview panel which interviewed Mathenjwa
and other candidates in early
December 2013. The appellant scored
Mathenjwa 13 out of 20. He was however given higher scores by the
other panellists and, despite
the fact that he did not have a degree
in behavioural science, was strongly recommended for appointment. The
appellant conceded
in cross-examination that when he raised the
alleged irregularities of this appointment with the Acting National
Commissioner (the
second respondent) he failed to disclose to her
that he was part of the panel that had recommended Mathenjwa and had
not recorded
an objection about any aspect of the process of
appointment at the time.
[16]
On 27 December 2013, Nxele approved the recommendation and effected
the appointment of Mathenjwa to
the position with effect from 1
January 2014.
[17]
Under cross-examination, Nxele attempted evasively to justify
Mathenjwa’s lack of a behavioural
science degree on the basis
of his other experience heading a correctional centre. Pressed to
address specifically the issue of
the lack of the required degree,
Nxele unconvincingly stated that Mathenjwa’s degree in public
administration was equivalent
and met the requirements.
The
appointment of the Assistant Director: Head Correctional Centre: Port
Shepstone Correctional Centre
–
Mdlalose
[18]
On 25 November 2013, various candidates including M.H. Mdlalose were
interviewed for the post of Assistant
Director: Head Correctional
Centre: Port Shepstone Correctional Centre. The position fell within
the scope of the appellant’s
managerial authority, but he was
not asked to participate in the panel. The panel was chaired by Ms
Nombuso Mkhize, an official
with whom Nxele had been intimate in the
distant past. Mkhize signed the relevant interview memorandum
recommending that Mdlalose
be appointed to the post.
[19]
On 6 December 2013, the appellant heard that Mdlalose was to be
appointed. He was concerned because
contrary to the established
practice he had not participated in the appointment process, and
because in his opinion there were
better candidates. He described the
process as a “sham” with the outcome having been
pre-determined prior to the interviews.
He subsequently learnt that
Mdlalose held neither the necessary qualifications nor had the
requisite experience for the post. He
was aware that one of the other
candidates, Mr. Budin, who held a degree in correctional services
management, was better qualified
than Mdlalose. The appellant engaged
Mkhize but she gave him no “real response” and brushed
him off. Later that day,
the appellant sent Nxele a text message
which read as follows:
‘
Hi
RC (Regional Commissioner) I am safe at home, I wanted to discuss the
issue of the HCC Port Shepstone and the issues around it.
I was
totally not involved and I got stories around it and indeed confirmed
it today. There is a Mr Mdlalose who are rumoured to
be getting the
post. I must say even when I enquired everybody was evasive. I wish
we can discuss it further.’
[20]
Nxele responded immediately confirming the practice that Area
Commissioners such as the appellant should
be on the interview panels
for posts under their management, but did not say anything in
relation to the appellant’s concerns
about the appointment. The
next day (Saturday 7 December 2013) the appellant attempted to
contact Nxele telephonically to discuss
the matter but was not
successful.
[21]
On Monday, 9 December 2013, the appellant again sent a text message
to Nxele asking to see him that
day. Nxele responded with a
threatening text message which read:
‘
Patrick,
I really want to caution you this time about your travelling which
has not been sanction (sic). It will seem lately you
are very loose
and judging by comments you make to even my support staff you either
asking for trouble if not challenging me and
my authority. I really
don’t need this but if it is the last thing we must have
between us I will comply.’
[22]
The appellant replied as follows:
‘
Hi
RC I am requesting us to meet so we can discuss all this issues (sic)
coz I don’t want my Boss to have anything that strains
the
working relationship and I can assure you that I am committed to the
direction you provide and would always take the invitation
to raise
issues with you directly if I have.’
The
appointment of Head of Centre: Sevontein CC: Pietermaritzburg –
Mbanjwa
[23]
The appellant was a member of the interview panel for this post
together with others, including Dr
Mdletshe, the Area Commissioner
for Pietermaritzburg. Both the appellant and Mdletshe testified that
Mbanjwa was not initially
shortlisted because he did not feature on
the original gross list. The appellant testified that after receiving
the shortlist,
Nxele insisted that Mbanjwa be included on the
shortlist even though he had not applied for the post. In Nxele’s
approval
of the shortlist he recorded in manuscript that the
shortlist was approved “subject to amendments” in
particular that
Mbanjwa, who was acting as the HCC Sevontein at the
time, was entitled in terms of policy to be considered for
appointment.
[24]
In cross-examination the appellant conceded that Mbanjwa appeared on
a second gross list and that his
application for the post had been
received before the closing date.
[25]
The appellant still maintained that Mbanjwa should not have been
shortlisted because he did not have
the necessary qualification for
the position, a relevant NQF6 degree or diploma in behavioural
science; nor did he have the requisite
seven years’ experience
in a supervisory post. However, both the appellant and Mdletshe
conceded that they scored Mbanjwa
very high, that he was the best
performing candidate at the interviews and that none of the panel
members expressed any reservations
about his appointment. They
unanimously and strongly recommended him for the post. The appellant
when complaining about this appointment
to the Acting Commissioner,
did not disclose to her that he had actually strongly recommended
Mbanjwa for the appointment. Moreover,
in cross-examination the
appellant effectively conceded that he was complicit in the
“corruption” pertaining to this
appointment.
The
appointment of the DD: Area Co-ordinator: Corporate Services
Pietermaritzburg – Mchunu
[26]
Interviews took place for the post of DD: Area Co-ordinator:
Corporate Services Pietermaritzburg on
13 December 2013. Mr. S.M.
Mchunu was one of the candidates. The appellant’s wife,
Millicent Baxter, had applied for the
position but was not
shortlisted. However, the day before the interviews, she was told to
present herself for an interview in Pietermaritzburg
on 13 December
2013. She waited at the interview venue the entire day but was not
interviewed for the position. Given that his
wife was an applicant,
the appellant was not a member of the panel. The appellant was
aggrieved about the treatment of his wife.
[27]
Mdletshe, the Area Commissioner of Pietermaritzburg, was a member of
the interview panel for this post
as the position fell within his
managerial authority. He testified that during the process it
appeared that Mchunu and another
candidate had also applied for a
similar post in Empangeni. It was agreed therefore to split the
interviews and to hold a further
discussion at a later date before
the selection of a recommended candidate.
[28]
On 19 December 2013, at an event at the Karridene Hotel, Mdletshe was
informed that the process had
been finalised and that Mchunu (who had
not been interviewed by Mdletshe) had been recommended for
appointment in Pietermaritzburg.
Mdletshe confronted Davids who had
chaired the panel. Davids assured him that no final decision had been
taken, that the panel
members would still meet to discuss the
appointments and they would do so on Monday 23 December 2013. In his
testimony, the appellant
confirmed that he had overheard the heated
exchange between Mdletshe and Davids at the Karridene Hotel and
understood it to relate
to the alleged irregular appointment of
Mchunu.
[29]
The proposed meeting in fact took place on 24 December 2013. It was
disclosed at the meeting that Nxele
had already appointed Mchunu to
the position without the selection panel having finalised the
appointment. The approval of the
appointment of Mchunu was signed by
Nxele on 23 December 2013.
The
events leading to the suspension and dismissal of the appellant
[30]
The appellant was evidently troubled about these five appointments
made between June and December 2013.
He was particularly aggrieved by
what he believed was the unfair treatment of his wife and her
application for the Area Co-ordinator
post in Pietermaritzburg. On 19
December 2013, he again sent Nxele a text message which read:
‘
Morning
RC I am on my way to the meeting but I must honestly raise with you
whether I cannot be excused coz I am hurt and won’t
be able to
keep quiet and smile with my colleagues who made me a utter fool and
disrespected my wife and our colleague. RC it has
nothing to do with
promotion it is matter of mutual respect and principle let alone the
issues that I raised with you in respect
of the manipulation I
witnessed.’
[31]
The appellant testified that the manipulation to which he referred
were the appointments of Mathenjwa
and Mdlalose which he had raised
with Nxele by text and telephonically. No explanation was given to
him as to why his wife was
not shortlisted but nonetheless invited to
an interview and then after waiting all day not interviewed.
[32]
The appellant testified that after receiving birthday greetings from
Nxele he replied by “whatsapp”
on 30 December 2013. His
message reveals that he remained aggrieved by the treatment of his
wife, not only the failure to interview
her but also her
non-promotion. The message reads:
‘
Morning
RC I was pleasantly surprised to wake up to the message this morning
thanks. I have however some bitter sweet since we took
principled
decisions in respect of appointments. RC don’t get me wrong I
don’t blame the RC rather people abusing their
status as panel
members at the expense of hard working and dedicated officials to
foster their friendships. Secondly, RC as a RMC
we have a duty [to]
jealously guard our integrity and protect one another not to
undermine eg I know you are to discuss with me
Ebongweni and what
happened to Milly but boss urself, myself are and come from courts
not to oppose our superiors rather that we
hate injustice. What does
the RMC expect of me to do when Milly challenged the perceived unfair
labour practice especially me sitting
with inside info like people
unable to answer full questions yet scoring 5 like in the case of
Mathenjwa. We short list a candidate
appointed 1 December 2013 to the
post of ASD and yet we say Milly lacks experience that is grossly
unfair. I was told out of da
panel that when others showed DC the
inconsistencies and unfairness he simply said NO she will not be
shortlisted which therefore
makes it personal. In spite of this be
assured of my commitment to our Region but simultaneously my resolve
not to accept personal
injustice to my family and those I am
privileged to lead.’
[33]
The reference to Ebongweni in the “whatsapp” message was
a reference to the appointment
of Mathenjwa and the alleged
manipulation of the scoring in relation to him. The appellant
testified that Nxele had promised to
discuss the Mathenjwa situation
with him but had not done so by that stage.
[34]
On 8 January 2014, the appellant’s daughter Raneesha Baxter was
interviewed for inclusion in
the departmental learnership programme
Kokstad Management Area. The advertisement in respect of the
programme was externally advertised
and was in respect of various
fields as per the needs of the department. A total of 59 candidates
were interviewed from which 20
were selected for appointment to
12-month learnership contracts from 26 January 2014.
The
appellant’s daughter was the highest scoring candidate. Nxele
approved the recommended appointments on 14 January 2014.
Nxele testified that
sometime after he made the appointments, he received a report that
the appellant had sought to influence the
appointment of his
daughter. There was then some discussion about the appointment of the
appellant’s daughter.
[35]
On 13 February 2014, the appellant sent text messages to Nxele
pushing for a meeting to discuss various
issues. The first message
again reveals his grievance about his wife, which in relevant part
read as follows:
‘
Hi
RC I wanted to talk to you the other day about your promise to
discuss what happened to Milly coz she is still aggrieved and
to talk
to you about the call my daughter received but every time someone
walked to you as a result I failed to talk to you. I
need us to talk
RC coz even my case is coming up soon, and I wanted us to talk since
the documents is going (sic) to infuriate
people and implicate
others…’
[36]
Later the same day, the appellant wrote raising various issues
including the failure to appoint his
wife and the appointment of his
daughter:
‘
Hi
RC I have tried my level best to talk to you like men not as
supervisor and subordinate. I have tried to defence (sic) the
indefensible.
I have tried to justify in your defence some decisions
which hurt me. I swallowed some allegations unfounded. I took it like
a
man still defending you. 13 December we treated Milly like dirt. I
still defended our decision. I raised things which hurt me
again…fundamentally
wrong the Mathenjwa and Mdlalose cases you
promised we will discuss it. Still I supported coz your decisions is
mine. Me and my
family has you and your family in our daily prayers
in spite of the many things that affects us negatively. When it
touches the
very innocent child I have to do what is expected of me
as her father. From this point even dismissal or whatever does not
bother
me, I rather die with them knowing and die having their
respect (sic).’
[37]
On 14 February 2014, Nxele caused a fax to be sent to the appellant
advising that he had instructed
that the learnership appointments for
the Kokstad management area would be suspended with immediate effect
and that no further
steps in the process should be taken. It was
subsequently alleged that the appellant had compromised the integrity
and credibility
of the selection process by asking the chairperson of
the panel shortly before the interviews whether he had seen the
application
of his daughter.
[38]
The appellant testified that, at that point, he believed that Nxele
was making good on his threat of
9 December 2013 and that his efforts
to discuss the irregularities with Nxele and prevent them from
occurring would come to nothing.
[39]
On 14 February 2014, the appellant drafted and sent letters to Nxele
and the Acting National Commissioner.
The letter he wrote to Nxele in
relevant part read as follows:
‘“
2.
Pursuant to my message (WHATSAPP) on 30 December 2013 the following:
3.
This office received a communication for the office of the Regional
Commissioner suspending the learnership of Kokstad Management
Area,
and it is hereby confirmed that it was done as instructed.
4.
In as much as I formally welcome the intervention of the Regional
Commissioner, I am requesting the following:
4.1
An in-depth investigation be launched into the learnership programme
process which the Regional Commissioner personally instructed
me to
stop the process as he confided in me about certain people who were
not shortlisted.
4.2
The appointment process of the Regional Co-ordinator Security: Mr MAF
Mnguni.
4.3
The appointment process which I discussed personally with the
Regional Commissioner of the following people:
4.3.1
Mr Mathenjwa: HCC Ebongweni
4.3.2
Mr Mdlalose: HCC Port Shepstone
4.3.3
Mr Mchunu: AC Corporate Services, PMB
4.3.4
Mr Mbanjwa DK: HCC Sevontein
5….
6.
I trust that this communication be treated as urgent and wish to
indicate that I have taken the liberty of forwarding same to
my
attorneys as well as other agencies.’
[40]
The learnership programme referred to in paragraph 4.1 of the letter
was an earlier programme which
had been cancelled and not the one
cancelled in 2014.
[41]
The letter to the Acting National Commissioner read:
‘
2.
This communication is an official request to have an audience with
the acting National Commissioner, Ms Jolingana and the Honourable
Minister of Correctional Services at a time and place convenient to
them.
3.
Purpose of the meeting will be outlined fully with the
above-mentioned functionaries but generally are (sic) about
corruption
and abuse of power by the Regional Commissioner of KwaZulu
Natal.”
[42]
On the same day, Nxele sent a text message to the appellant. The
message acknowledged receipt of the
appellant’s letter and
suggested that the appellant had only raised issues with the
irregular appointments in response to
Nxele’s suspension of the
learnership programme. Later that day the appellant responded by text
message, pointing out that
Nxele’s claim was incorrect and that
the appointment irregularities had been previously raised with him
and not only in response
to the suspension of the learnership
programme. The relevant part of the text reads:
‘
Thanks
for the response however I want to correct you that all these matters
has been raised with you on time and is not in response
to this
issue. From Pillay, Milly, Mdlalose, DK even the allegations and da
rest and I have the proof by the way this is only to
mention but a
few (sic).’
Nxele
responded immediately as follows:
‘
Unless
you have become the RC and believe you can dictate what must happen
in this region, there is nothing you have raised with
me except that
you complain about how your wife was treated. Surely if there is
anything that warrants an audience with the minister
or and act
NatCom you should have put it in writing past your supervisor
especially where you want the RMC. And don’t be
selective about
what must or should be investigated. There is more than your wish
list. There is no correcting me here.’
[43]
Over the weekend of 15-16 February 2014 the appellant had a telephone
conversation with the Acting
National Commissioner and raised with
her his concerns about irregularities in respect of the five
appointments and interference
in the previous learnership programme
by Nxele. The appellant alleged that Nxele had stopped the earlier
learnership programme
because one of his relatives was not on the
list of recommended appointments.
[44]
Mdletshe testified that he too had issues with irregularities and
nepotism in appointments to learnership
programmes throughout KwaZulu
Natal. He raised this and mentioned specific appointments
at a meeting with
Nxele on 17 February 2014. During the meeting, Nxele discussed the
appellant’s letter and stated that he
was “going to deal
with him”. As some of the appointments were in Mdletshe’s
area of Pietermaritzburg, Nxele
warned Mdletshe not to become
involved or he would be identified with the appellant and “dealt
with”. Nxele further
told Mdletshe that he had no difficulty
with officials’ relatives being placed on the learnership
programme but that this
must be done on his authority, as had
occurred on previous occasions.
[45]
Mdletshe’s account of the meeting of 17 February 2014 is
captured in a memorandum he sent to
Nxele some two months later on 7
April 2014 and which during his testimony he confirmed as a correct
record of the events. Nxele
did not reply to the memorandum in
writing. The opening paragraph of the memorandum records that its
purpose was twofold and was
stated to be:
‘
1.1
To place on record certain matters that have characterised the
interaction, either face-to-face or telephonically, between Mr
M
Nxele and oneself in our capacities as the Regional Commissioner:
KwaZulu Natal and the Area Commissioner: Pietermaritzburg.
1.2
To formally inform the Regional Commissioner of what one construes
as a deliberate move to influence the Area Commissioner:
Pietermaritzburg, in his capacity as an appointed member of the
selection panel for various managerial posts advertised on 6 February
2014, in respect of the post of Assistant Director: Head of
Correctional Centre, Vryheid.’
[46]
During the meeting Mdletshe and Nxele discussed the problem of the
appointment of relatives to posts
in the department in general, but
also in regard to a relative of Mdletshe (Sibusiso Somzana) also
having been recommended for
appointment to the learnership programme.
The conversation then turned to the situation involving the
appellant. The memorandum,
in relevant part, records the discussion
as follows:
‘
The
Regional Commissioner indicated that if one wanted his relative to be
considered for selection for the learnership programme,
one should
have approached him, as the Minister of Correctional Services also
did, through the Acting National Commissioner, regarding
the
Minister’s wife’s relatives who were pushed through at
his instruction as the Regional Commissioner…..
The
Regional Commissioner indicated that the issue involving the
applicant for the learnership programme, Sibusiso Somzana who was
to
be based at Kokstad, was not a serious matter compared to the one
involving Mr JP Baxter’s (the appellant) child who was
also
selected for the learnership programme, to be based at Kokstad. The
issue of less seriousness stems from the fact that Sibusiso
did not
share the same surname with me, that Sibusiso got selected for
placement at Kokstad and not at Pietermaritzburg.
When
one tried to calm the Regional Commissioner down regarding his outcry
concerning what he regarded as an unwarranted attack
on him by Mr
Baxter when Mr Baxter called for investigation into certain alleged
irregular appointments, the Regional Commissioner
indicated that he
was prepared to “fall on his sword” rather than to allow
Mr Baxter to get away with all what he had
done. The Regional
Commissioner, infuriated by Mr Baxter’s actions, exploded and
said that “Does it mean that if the
Acting National
Commissioner takes disciplinary action against me as the Regional
Commissioner, I would go to the extent of asking
for an investigation
into how her brother, Mr Delekile Klaas was appointed as Regional
Commissioner? No! One would not do that.
What Mr Baxter has done is
quite absurd.
Based
on the fact that some of the alleged irregular appointments that Mr
Baxter referred to belonged to Pietermaritzburg management
Area, the
Regional Commissioner asked the Area Commissioner: Pietermaritzburg
to stay out of the Baxter saga as the mere mention
of
Pietermaritzburg appointment that are questioned by Mr Baxter implies
that one was also part of what Mr Baxter was doing.
As
a response to the Regional Commissioner’s suggestion that the
mention of Pietermaritzburg positions implies that one was
part of
what had written (sic) to the Regional Commissioner, one indicated
that one was not at all involved.’
[47]
On 18 February 2014, Nxele sent a letter to the appellant indicating
that he had been made aware of
the appellant’s discussion with
the Acting National Commissioner over the weekend and requesting
reasons by the following
morning at 08:00 why the appellant should
not be suspended. The relevant part of the letter reads:
‘
I
refer to the following incidents which you allegedly committed that
amounts to misconduct in terms of the SMS Handbook.
1.
You interfered with the recruitment processes for the learnership of
Kokstad management Area by talking to panel members for
the
shortlisting and appointment of your daughter.
2.
You undermined my authority by questioning my directive to
temporarily suspend the Kokstad learnership due to irregularities
that were brought to my attention; in turn you accused me of being
corrupt and suggested that I be investigated.
3.
Requested an audience with the Acting National Commissioner and the
Honourable Minister of Correctional Services to discuss how
corrupt I
am and how I abuse my powers as the Regional Commissioner.
4.
During and after the weekend of 15/16 February 2014, you made
numerous unfounded allegations to the National Commissioner and
threatened to expose and embarrass me, the Department and the ANC.
I
hereby invite you to furnish me with written reasons by 08:00 on
Wednesday 19 February 2014, why I should not suspend you pending
an
investigation and disciplinary processes to follow if any.’
[48]
The appellant immediately addressed a letter to the Acting National
Commissioner pointing out that
he had confided in her in trust and
confidence regarding “gross irregularities in respect of
selection and recruitment”
in KwaZulu-Natal and expressed
disappointment at how she had dealt with the matter. He did not make
any representations to Nxele.
On 20 February 2014, the appellant was
issued a letter placing him under precautionary suspension on certain
conditions. Subsequent
to his suspension, the appellant met with the
Acting National Commissioner in Durban, on 11 March 2014, and handed
to her documentary
proof of the disclosures he had made. She
promised to revert to
him but did not do so.
[49]
During February 2014, an investigation was conducted by the
department into allegations of maladministration
in relation to the
Kokstad learnership programme. The terms of reference of the
investigation were stated to be: i) the suspected
interference in the
selection process during the intake of Kokstad Management Area’s
learners for 2013/2014 financial year;
and ii) to determine whether
the selection committee was influenced in any way to select relatives
of two senior managers during
the intake.
[50]
In its report issued on 24 February 2014, the investigators noted
that after the intervention of Nxele,
the appellant’s daughter
and Mdletshe’s relative, Sibusiso Somzana, were removed from
the original list of 20 candidates
and the remaining 18 learners on
the list were allowed to report to Zonderwater College for their
training. They found that the
chairperson of the selection committee,
Khumalo, and another panellist, Ms Mavimbela, had interacted with the
appellant and Mdletshe
prior to the shortlisting process and had
discussed the applications of the appellant’s daughter with the
appellant and that
of Somzana with Mdletshe. Khumalo and Mavimbela
informed the panel about their respective discussions with the two
Area Commissioners
and made them aware of their relationships to the
two candidates. The investigators recommended
inter alia
that
Khumalo and Mavimbela should be disciplined for informing the panel
about the relationship of the two candidates to the two
Area
Commissioners. However, it also recommended that the two candidates
be permitted to report to the college for training as
their exclusion
could be construed as unfair discrimination.
[51]
On 24 March 2014, different investigators issued a second report
(without referring to the first) into
the learnership programme. The
second report relied on much the same information and made much the
same recommendations as the
first, save that it recommended that the
appellant’s daughter and Mdletshe’s nephew not be
appointed to the learnership
programme as the process of their
appointment was flawed. It found also that the appellant and Mdletshe
had “abused their
position of authority by influencing the
committee members” to recruit their relatives. The report was
critical of the appellant’s
refusal to co-operate in the
investigation. It concluded as follows:
‘
It
is further recommended that Director Baxter should remain on
suspension due to the seriousness of these allegations, as well
as
myriad of other allegations levelled against him that are being
considered to be investigated, including his lack of cooperation
which has made soured his relationship with the Management of the
Region and staff members. His conduct has made it practically
impossible to work with him.’
[52]
On 25 April 2014, the appellant was charged with five counts of
misconduct. Only the first charge (in
relation to the appellant’s
alleged attempt to influence the selection process in the learnership
programme) bears any relation
to the complaints raised by Nxele in
the letter of contemplated suspension of 18 February 2014. The
remaining four charges relate
to other incidents which occurred after
the appellant’s suspension. The charge sheet provided as
follows:
“
COUNT
1
Whilst
employed in Kokstad Management Area as Area Commissioner, you are
alleged to have contravened SMS Handbook Chapter 7, annexure
A,
paragraph (6) in that during the learnership intake 2013/ 2014 you
compromised the integrity and credibility of the selection
process by
asking the Chairperson of Kokstad Management Area Selection Panel Mr
Khumalo BC if he saw the forms of your daughter,
which question
conveyed the innuendo that she should be appointed whereby you
prejudiced the administration, discipline or efficiency
of the
Department.
COUNT
2
Whilst
employed in Kokstad Management Area as Area Commissioner, you are
alleged to have contravened SMS Handbook Chapter 7 1/2006
annexure A,
paragraph (27) in that around the 09 March 2014 it is alleged that
you refused to obey security regulations by refusing
to open your car
boot and be searched as required by the correctional services
B-Order, 3.14.
COUNT
3
Whilst
employed in Kokstad Management Area as Area Commissioner, you are
alleged to have contravened SMS Handbook Chapter 7 1/2006
annexure A,
paragraph (10) in that around the 22 February 2014 you violated your
suspension condition by communicating with a Whatsapp
with official
Zikalala SN and even threatening her to summon her to court.”
COUNT
4
Whilst
employed in Kokstad Management Area as Area Commissioner, you are
alleged to have contravened SMS Handbook Chapter 7 1/2006
annexure A,
paragraph (1) in that around the 19 February 2014 you failed to
submit sick leave within the 5 days period as stipulated
by the
determination and directive on leave of absence in the public
service.
COUNT
5
Whilst
employed in Kokstad Management Area as Area Commissioner, you are
alleged to have contravened SMS Handbook Chapter 7 1/2006
annexure A,
paragraph (28) in that around the 20 February 2014 you showed a
document to Mr Patric Zibuyele Marau which you claim
that the said
official challenged the Department of Correctional Services for not
appointing him which was misrepresentation because
that was not in
line with what was recommended by the Committee.”
[53]
On 18 November 2014, after a lengthy disciplinary hearing, the
appellant was found guilty on all five
charges.
[3]
The
Labour Court proceedings
[54]
In February 2015, the appellant referred a dispute to the Labour
Court in terms of section 191(5)(b)(i)
of the LRA alleging that the
reason for his dismissal was automatically unfair on account of his
having made protected disclosures.
As stated earlier, he alleged in
the alternative that his dismissal was substantively and procedurally
unfair and thus the parties
accepted that if the Labour Court were to
find the dismissal not to be automatically unfair, it would continue
with the determination
of whether the dismissal was substantively and
procedurally unfair in terms of section 158(2)(b) of the LRA.
[55]
The Labour Court held that the appellant had failed to discharge his
onus to show that any of the disclosures
he made regarding the
various appointments constituted protected disclosures and thus that
his dismissal was automatically unfair.
It held that whatever was
disclosed to the Acting National Commissioner and to Nxele by the
appellant was not done in good faith
as he acted out of ulterior
motive in response to the exclusion of his daughter from the
learnership programme and the failure
to interview or to promote his
wife and on that basis too the disclosures were not protected.
[56]
The Labour Court further concluded that the dismissal was
substantively and procedurally fair. It held
that the evidence
sufficiently established the misconduct in counts 1, 2 and 5. The
Labour Court offered little in the way of analysis
in reaching this
conclusion. Its reasoning on this issue is set out in three
paragraphs referring to the findings of the chairperson
of the
disciplinary hearing as follows:
‘
During
the trial before me, evidence led was more about the contravention of
the provisions of the PDA and nothing really said about
substantive
and procedural fairness of the dismissal. ….I must agree with
Ms Matlejoane that counts 1, 2 and 5 are individually
very serious,
more as they were committed by a senior person who is supposed to be
exemplary. In respect of count one, Mr Baxter
was senior to Mr
Khumalo and in a subtle way actually told him to look for his
daughter’s name and appoint her. In respect
of count two, as
already alluded to, he gave himself an exemption he really was not
entitled to. He should have lived by example
to ensure that everyone
was seen as equal before the law. In count five, Mr Baxter was
steering (sic) trouble at his work place.
He challenged the
supervisor by using a colleague. Considered individually or
cumulatively, the charges justify dismissal.
The
only procedural ground of merit raised is one of a delayed
disciplinary hearing, which should have been held within 60 days
from
the suspension date. However, no demonstrable prejudice was caused to
Mr Baxter. On the contrary, it prolonged the date of
his dismissal.
The benefit of the finding on the delay is however neutralised by the
general fair procedure adopted at the internal
disciplinary hearing
to the point that it cannot be said that the whole procedure was
vitiated by this delay.’
[57]
The Labour Court made no clear finding about count 3, presumably
because it believed that the misconduct
in counts 1, 2 and 5 provided
a fair reason for dismissal, and held that the respondents had not
proved that the appellant was
guilty of the misconduct in count 4.
The
legislative framework
[58]
Section 187(1) of the LRA lists reasons for which employees may not
be dismissed (including making
a protected disclosure under the PDA)
and categorises such dismissals as automatically unfair. If it is
proved that the employee
was dismissed for any of the reasons
specified in section 187(1) of the LRA, the employer cannot raise a
defence based on the alleged
fairness of the dismissal. The employer
cannot claim that a dismissal for a proscribed reason was necessary
for any other secondary
reason, even if it can be argued that the
dismissal was effected for a permissible reason related to the
employee’s conduct
or capacity or the employer’s
operational requirements.
[4]
[59]
However, there may be different reasons for dismissing an employee
and an employer is entitled to argue
that the reason for the
dismissal was not for a reason proscribed by section 187(1) of the
LRA but for a fair reason based on incapacity
or misconduct. The
question will then trigger a causation enquiry.
The essential inquiry
is whether the reason for the dismissal is one proscribed by section
187(1) of the LRA, in this case the one
in section 187(1)(h) of the
LRA which proscribes the dismissal of an employee for making a
protected disclosure.
[60]
The test for determining the true reason is that laid down in
SA
Chemical Workers Union v Afrox Ltd
.
[5]
The court must determine factual causation by asking whether the
dismissal would have occurred if the employee had not made the
protected disclosure. If the answer is yes, then the dismissal is not
automatically unfair. If the answer is no that does not immediately
render the dismissal automatically unfair; the next issue is one of
legal causation, namely whether such disclosure was the main,
dominant, proximate or most likely cause of the dismissal. Thus, the
court must inquire into the main, dominant, proximate or most
likely
reason for the dismissal. The employee bears the onus to establish at
least a “credible possibility” that the
dismissal was for
a proscribed reason.
[6]
If the
employee fails to discharge that onus, the Labour Court at its
discretion may proceed to determine the substantive and procedural
fairness of the dismissal in terms of section 158(2) of the LRA, as
happened in this case.
[61]
The preamble to the PDA sets out its multiple purposes. Recognising
that criminal and irregular conduct
in organs of state (such as the
department) are detrimental to good, effective, accountable and
transparent governance and can
cause social damage, the PDA aims to
create a culture which will facilitate the disclosure of information
by employees relating
to criminal and other irregular conduct in the
work-place in a responsible manner by providing guidelines for the
disclosure of
such information and protection against any reprisals
as a result of such disclosures.
[62]
Section 1(b) of the PDA defines a disclosure to include:
‘
Any
disclosure of information regarding any conduct of an employer, or an
employee of that employer, made by any employee who has
reason to
believe that the information concerned shows or tends to show ….that
a person has failed, is failing or is likely
to fail to comply with
any legal obligation to which that person is subject.’
[63]
The appellant contends that the disclosures he made were made in good
faith to his employer and are
thus protected in terms of section 6 of
the PDA. Section 3 of the PDA provides that no employee may be
subjected to any occupational
detriment (defined to include
disciplinary action, suspension and dismissal) by his or her employer
on account, or
partly on account
, of having made a protected
disclosure. It follows then if the appellant shows that he was
dismissed partly on account of having
made a protected disclosure,
the respondents would have contravened the PDA and his dismissal as a
result would be automatically
unfair in terms of section 187(1)(h) of
the LRA.
[64]
In order to succeed in his claim for automatically unfair dismissal,
the appellant was therefore required
at trial to establish the
following: i) he disclosed information regarding the conduct of an
employee (Nxele or other persons)
of the department to his employer;
ii) he had reason to believe the information showed or tended to show
the failure or potential
failure to comply with any legal obligation
to which that employee was subject; iii) the disclosure was made in
good faith; and
iv) he was disciplined, suspended and dismissed on
account or partly on account of having made the disclosure.
[65]
The appellant argued that the disclosures he made indicated or tended
to indicate that Nxele and other
employees who served on the
interview panels failed to comply with various legal obligations to
which they were subject. In particular,
reference was made to section
195(1) of the Constitution of the Republic of South Africa, 1996
which provides
inter
alia
that
the public administration
must
be governed along the principles of a high standard of professional
ethics, accountability transparency and personnel management
practices based on ability, objectivity and fairness. Various
provisions of the Public Service Regulations are also implicated.
An
executing authority shall determine and record composite requirements
for employment in any post on the basis of the inherent
requirements
of the job;
[7]
and shall appoint
a selection committee to make recommendations on appointments to a
post after considering,
inter
alia
,
the training skills, competence and knowledge necessary to meet the
inherent requirements of the post.
[8]
If an executing authority does not approve a recommendation of a
selection committee she or he shall record the reasons for her
or his
decision in writing. The executing authority must be satisfied before
making any appointment that the candidate qualifies
in all respects
for the post.
[9]
Disclosures
in terms of section 1 of the PDA
[66]
In dismissing the appellant’s claim of automatically unfair
dismissal, the Labour Court held
in relation to all of the allegedly
irregular appointments that the appellant did not have reason to
believe
the
information he disclosed showed or tended to show the failure or
potential failure to comply with any legal obligation to which
the
relevant employees were subject. It thus held that the disclosures
were not disclosures as contemplated in the PDA. The Labour
Court
erred in a number of respects in this regard.
[67]
In analysing the reasoning of the Labour Court, it is important to
note that the PDA does not require
that the disclosures made are
factually correct. The phrase “tends to show” in section
1 of the PDA intends that it
is sufficient if the information in the
disclosure is indicative of an impropriety.
[10]
Likewise, the requirement that the employee merely have a reason to
believe that the information points to an irregularity does
not
require personal knowledge of the information disclosed. That would
set too high a standard frustrating the operation of the
PDA. Hearsay
information, depending on its nature and cogency, may provide a basis
for a reasonable belief of possible irregularity.
[68]
Turning to the facts, it is indisputable that the appellant disclosed
information to both Nxele and
the Acting National Commissioner
regarding the conduct of the employees who were members of the
various interview panels and alleged
improper interference by Nxele.
The “whatsapp” messages of 6 December 2013, 30 December
2013 and 13 February 2014,
the letters of 14 February 2014 and the
telephone conversation between the appellant and the Acting National
Commissioner on 15
February 2014 (as evidenced by the reaction to it)
all indicate that the appellant disclosed information of alleged
impropriety
in relation to the various appointments.
[69]
In relation to the appointment of Mnguni, the Labour Court held that
the appellant did not have reason
to believe that there was conduct
showing impropriety, mainly because he relied solely on the hearsay
evidence of Davids, the chair
of the panel that Pillay had been
recommended. This is plainly wrong. The appellant was a member of the
interview panel and had
joined in the unanimous decision to recommend
Pillay. He testified that after the interview process, and
deliberations by the panel,
Pillay was the recommended candidate,
with Marau in second place and Mnguni in third. This evidence was not
countered in any meaningful
way during cross-examination and is
corroborated by the interview sheets signed off by members of the
panel. The existence of a
memorandum (albeit unsigned) of the
deliberations reflecting the recommendation of Pillay is an
indication of possible impropriety
and there was no cogent basis laid
to suggest that the appellant had forged such a document. Nxele’s
insistence that the
interview panel had recommended Mnguni is not of
much value. He, unlike the appellant, was not a member of the
interview panel.
The respondents did not call any other member of the
interview panel to dispute that Pillay had been recommended or to
confirm
that the panel had indeed recommended Mnguni. The information
disclosed to the Acting National Commissioner and to Nxele about this
appointment was therefore based on a reasonable belief that the
information tended to show that there had been a legal impropriety.
[70]
The Labour Court’s finding in relation to the appointment of
Mathenjwa was also flawed. The Labour
Court relied on certain
inconsistencies in the appellant’s testimony about how
Mathenjwa had ended up on the shortlist to
dismiss the appellant’s
version and to conclude that there was no information showing or
tending to show impropriety. In
so doing, it missed the essential
point that Mathenjwa ought not to have been shortlisted, interviewed
or appointed as he did not
meet the stipulated criteria for
selection. The post required,
inter
alia
, an
NQF level 6 qualification in behavioural science and seven years
relevant experience in a supervisory post. It is common cause
that
Mathenjwa did not have such a degree and he was originally not
shortlisted for that reason. The appellant testified that he
and
others were told by Nxele to put Mathenjwa on the shortlist, which
happened but with only two of the seven shortlisting panel
members
signing the shortlist. Nxele’s insistence that the B. Admin
degree held by Mathenjwa was equivalent to a degree in
behavioural
sciences is unsustainable. In the result, it is indisputable that
this appointment was irregular in that the recommended
candidate did
not meet the advertised criteria. The information disclosed by the
appellant about the appointment of Mathenjwa thus
showed that there
was non-compliance with a legal obligation.
[71]
The Labour Court was similarly convinced that the information
regarding the appointment of Mdlalose
did not constitute a disclosure
as contemplated in the PDA. The appellant’s principal concerns
about this appointment were
that: i) he should have been a member of
the interview panel; ii) the chairperson of the panel had previously
(though many years
ago) been romantically involved with Nxele; iii)
Mdlalose was a friend of Nxele; and iv) Mdlalose did not have a
relevant degree
or seven years relevant experience in a supervisory
post. Much of the evidence regarding these issues is in dispute.
However, it
is not disputed that Mdlalose’s highest academic
qualification was a teacher’s diploma in biology and
mathematics.
The job advertisement for this post required a “relevant
B Degree/National Diploma”. The appellant was of the opinion
that a teaching diploma in biology and mathematics was not a
“relevant” academic qualification for appointment to the
post of Head of Correctional Centre. The Labour Court held that the
opinion of the appellant was not of importance since he was
not a
member of the interview panel and that this was a matter for Nxele.
That is not correct and an insufficient basis for concluding
that the
appellant’s conveying of the information regarding the conduct
of the interview panel was not a disclosure. The
appellant’s
belief that the post required a degree in behaviour science,
administration or correctional services management
was a reasonable
belief; and the appointment of Mdlalose without such a qualification
showed or tended to show that the interview
panel may not have
complied with its obligation that the candidate qualified in all
respects for the post.
[72]
Mbanjwa too did not have the relevant qualifications and should not
have been shortlisted. He was put
on the list at the insistence of
Nxele. The Labour Court held that there was no disclosure in terms of
the PDA in this instance
because the appellant had not disclosed to
the Acting National Commissioner that he was “part of the
corruption” in
that he had strongly recommended Mbanjwa for
appointment. Although, the appellant’s non-disclosure of his
recommendation
may raise doubts about his good faith, the information
disclosed nonetheless showed or tended to show a failure by the panel
and
Nxele to comply with the applicable law.
[73]
The Labour Court held that there was no disclosure regarding the
appointment of Mchunu because the
appellant had not mentioned any
alleged irregularities to Nxele. However, at the same time, it
accepted the evidence of Mdletshe
that the manner in which this
appointment was concluded was irregular. The appointment was made by
Nxele prior to the interview
panel concluding its deliberations. The
appellant, who was not a member of this panel, conceded that he had
not discussed the Mchunu
appointment with Nxele. He did refer to it
in his letter to Nxele of 14 February 2014. He moreover emphasised in
cross-examination
that Nxele had played a role in this irregular
appointment by signing off on it and that he (the appellant) had said
as much to
the Acting National Commissioner. In the premises, it is
possible to infer that the appellant disclosed information to the
Acting
National Commissioner regarding the conduct of the interview
panellists and Nxele which he had reason to believe showed or tended
to show that the members of the panel and Nxele had not complied with
their legal obligations. The disclosure of that information
was
accordingly a disclosure as contemplated in the PDA.
[74]
It is clear therefore that the disclosures made by the appellant
relating to the irregularities in
the various recruitment processes
constituted disclosures in terms of the PDA. They disclosed
information regarding the conduct
of some members of the interview
panels and Nxele which the appellant had reason to believe showed or
tended to show that the members
of the interview panels and/or Nxele
had failed to comply with legal obligations to which they were
subject in terms of the Public
Service Regulations. The Labour Court
erred in holding otherwise.
[75]
That, however, is not the end of the matter. Before it can be held
that the employer contravened the
PDA by dismissing the appellant, it
must be shown firstly that the disclosure was protected in terms of
the PDA and secondly that
the appellant’s making of the
protected disclosure was the main or proximate reason for his
dismissal.
Protected
disclosures – the requirement of good faith
[76]
Section 1 of the PDA requires a disclosure made to an employer in
accordance with section 6 to be made
in good faith and in accordance
with any prescribed procedure in order to be a protected disclosure.
[77]
The respondents contend that the disclosures made by the appellant
were not made in good faith because
they were actuated mainly in
response to Nxele having suspended the learnership programme in
Kokstad on account of the undue influence
the appellant may have
brought to bear regarding his daughter. They submit that the
appellant was “driven by ulterior motive,
revenge or malice”.
The lack of good faith, it was argued, was further borne out by the
appellant’s belated disclosure
to the Acting National
Commissioner regarding the previous learnership programme which
allegedly involved the appointment of a
relative of Nxele. These
events were known to the appellant and took place more than three
years previously, yet he only disclosed
the irregularity when his
daughter’s learnership application was thwarted by Nxele.
[78]
The Labour Court rightly pointed out, there were thus two triggers
prompting the disclosures, both
involving members of the appellant’s
family. It stated:
‘
The
cancellation of the learnership program involving the daughter of Mr
Baxter and the failure to short list and interview the
wife of Mr
Baxter appear to have been what infuriated Mr Baxter. He even
declared that he would not “accept personal injustice
to my
family and those I am privileged to lead.” He displayed
an attitude that he was too senior to be subjected to
the ordinary
rules of the Department. He refused to be searched or to have his
family members subjected to ordinary prison regulations.
He
reached a stage in his career where he though his team work would be
constituted by those he wanted and when other panellists
differed
from him, he cried foul. Clearly, if his wife had been appointed to
the position she applied for and if the learnership
program of his
daughter had not been cancelled, his subtle interference
notwithstanding, and if appointments in his area were done
according
to his wishes, he would have been content. ……….
What Mr Baxter said upon discovering the cancellation
of the
leadership program is informative of his attitude. He said: “
When
it touches the very innocent child, I have to do what is expected of
me as her father
”. So the
employment of his daughter by the Department was to him a high
priority.’
[79]
The respondents accordingly submit that the Labour Court correctly
found that the appellant “was
driven by ulterior motive,
revenge or malice” and thus did not make the disclosures in
good faith with the result that the
disclosures were not protected
and the employer did not contravene the PDA by dismissing the
appellant.
[80]
The appellant acknowledged that his daughter’s exclusion from
the learnership programme played
a role in his making the
disclosures. He was also undeniably aggrieved by his wife’s
unsuccessful application for the post
of Deputy-Director: Area
Co-ordinator: Corporate Services.
[81]
The appellant contends that the Labour Court ignored the evidence
showing that some of his complaints
regarding the appointments
preceded the incident involving his family members. That is correct.
The contemporaneous correspondence
reflects that the appellant took
up the issue of Mdlalose in a text message in early December 2013 and
claims to have discussed
the non-appointment of Pillay with Nxele at
the Karridene Hotel in July or August 2013. He did not however
formally challenge the
appointments on grounds of irregularity.
[82]
It is clear that the appellant was partly motivated to make the
disclosures by the umbrage he took
at the perceived unfair treatment
of his immediate family members. Had that not happened it is doubtful
whether he would have made
them. However, the exchange in text
messages about Mdlalose in early December 2013, including Nxele’s
veiled threat to investigate
the appellant’s allegedly
unauthorised travel, supports a finding that Nxele understood at that
stage that the appellant
was perturbed by certain appointments and to
Nxele’s irritation had raised them with other colleagues. Nxele
saw this as
a challenge to his authority and his threatening response
probably gave the appellant pause. Additionally, the text messages
between
the appellant and Nxele on 13 and 14 February 2014 further
indicate that the appellant had indeed raised questions about Pillay,
Mathenjwa and Mbanjwa prior to the suspension of the learnership
programme.
[83]
In any event, the fact that the appellant may have acted partly out
of ulterior motive does not mean
that he did not act in good faith
(or acted in bad faith) by making the disclosure. Good faith must be
assessed contextually on
a case-by-case basis, taking account of
various factors at play in the specific case. Acting with an ulterior
motive is not necessarily
the same as acting in bad faith. Acting in
bad faith in a strict sense refers to a dishonest intention or a
corrupt motive. The
information in the disclosures made by the
appellant was in fact true in important respects. The appellant did
not deceitfully
manufacture information or unreasonably exaggerate
the wrongdoing that had taken place. There were real problems with
the manner
in which appointments were being made in the region for
which Nxele was responsible. The fact that the appellant acted with
some
personal animosity or spite is not alone sufficient to conclude
that he did not act in good faith. His earlier attempts to challenge
the decisions, while somewhat tentative, and perhaps self-serving,
reveal that by the time he belatedly made the disclosures (some
weeks
after being threatened by Nxele) he had mixed motives. In the
circumstances it cannot be said that the appellant did not
make the
disclosures in good faith. In the result, the disclosures he made
were protected disclosures in terms of the PDA and the
Labour Court
erred in holding otherwise.
The
dominant reason for the dismissal
[84]
It is next necessary to determine the dominant reason for the
dismissal. Section 3 of the PDA provides
that no employee may be
subjected to any occupational detriment (dismissed) by his or her
employer on account, or partly on account,
of having made a protected
disclosure. As explained earlier, where a dismissal is in
contravention of the PDA it will be automatically
unfair in terms of
section 187(1)(h) of the LRA. If there are different reasons for
dismissing an employee, the court must embark
on a causation enquiry.
The decisive inquiry therefore is whether the reason for the
appellant’s dismissal is one proscribed
by section 187(1)(h) of
the LRA or the misconduct for which he was charged. The court must
determine whether the dismissal would
have occurred if the appellant
had not made the protected disclosure and, if not, whether such
disclosure was the main, dominant,
proximate or most likely cause of
the dismissal.
[85]
The respondents maintain that the reason for the dismissal of the
appellant was the misconduct of which
he was found guilty by the
disciplinary enquiry. However, neither party made any meaningful
submissions regarding the causation
issue. Both limited their
submissions to whether, in the absence of a finding of automatically
unfair dismissal, the Labour Court
erred in concluding that the
dismissal of the appellant was substantively and procedurally fair.
However, if it is proved that
the appellant was dismissed for making
a protected disclosure, the respondents cannot raise a defence based
on the alleged fairness
of the dismissal or claim that the dismissal
was necessary for other reasons related to the appellant’s
conduct.
[86]
Although the findings of the disciplinary enquiry and the witness
statements form part of the discovered
documents, it was agreed in
the pre-trial minute that, while the documents were what they
purported to be, the truth of their contents
was not admitted and if
the respondents wished to rely on such evidence the relevant
witnesses would need to testify.
[87]
The first count against the appellant was that he compromised the
integrity and credibility of the
selection process by asking the
chairperson of the panel interviewing for the learnership programme,
Khumalo, if he had seen the
application of his daughter with the
innuendo that she should be appointed. The respondents led no
evidence before the Labour Court
relating to this charge. The only
evidence before the Labour Court was the appellant’s
confirmation that he had, indeed,
asked Khumalo if he had seen that
his daughter had applied for a learnership. Neither Khumalo nor any
other witness was called
to testify before the Labour Court with
regard to the appellant’s comment or their interpretation of
it, or to rebut the
appellant’s testimony that the meeting with
Khumalo had occurred by chance and that his comments were motivated
by pride
and excitement at the fact that his daughter had decided to
follow in the career choice of her parents.
[88]
The second count against the appellant was that he refused to obey
security regulations by refusing
to open his car boot and be searched
as he entered the correctional centre on one occasion while he was on
suspension. The appellant
was offended by the attempt to search him
and saw it is a form of harassment. He was at the time the head of
the correctional centre.
When faced with the attempt to search him he
immediately contacted Sibutha, the Acting Head of the centre, who
gave him permission
to enter without being searched. Sibutha
testified that she had the authority to waive the search requirement.
The appellant thus
clearly did not commit any misconduct in relation
to this issue.
[89]
Count 3 alleged that the appellant violated his conditions of
suspension by communicating by a whatsapp
with a colleague, Zikalala,
and “threatening to summon her to court”. The letter of
suspension provided that the appellant
could not contact or
communicate with any employee of the department without the written
permission of Nxele and the appellant
is alleged to have breached
this provision. The appellant does not dispute the exchange with
Zikalala. The message said nothing
more than that the appellant had
been suspended and that Zikalala and others would be “called to
court” and that the
appellant wanted Zikalala to “tell
the court what is happening”. The appellant accepted that he
was probably technically
in breach of his letter of suspension by
communicating with Zikalala. However, the text was neither
threatening nor an attempt
to interfere in any investigation against
him. The purpose of this provision was unnecessarily restrictive as
the appellant was
entitled to prepare his defence to the disciplinary
charges without having to revert to Nxele.
[90]
Count 4 alleged that on 19 February 2014, the appellant failed to
“submit sick leave” within
the five day period stipulated
by the directive on leave of absence in the public service. The
Labour Court found there was no
substance to this charge and there is
no cross-appeal against that finding, indicating that there was most
likely no reason for
disciplinary action on this score either.
[91]
Count 5 alleged that on 20 February 2014, the appellant showed Marau
the unsigned memorandum regarding
the position of Regional
Co-ordinator: Security in which Marau was the second recommended
candidate. It was alleged that this was
a misrepresentation because
it was not in line with what was recommended by the interview panel.
The appellant’s testimony
about the recommendation was not
meaningfully challenged by any other member of the interview panel
and his version is corroborated
by the interview lists as signed off
by the panel members. There was thus no misrepresentation.
[92]
The charges against the appellant, with the exception of count 1,
were thus implausible, if not trivial.
They appear somewhat trumped
up and support a conclusion that the real reason for Nxele taking
disciplinary action against the
appellant was something else. One
does not have to look too far to determine that reason. The
correspondence leading up to the
appellant’s suspension makes
it plain that Nxele took umbrage at the appellant questioning the
propriety of the various appointments.
This is most evident in
Nxele’s threat made in the message of 9 December 2013 where he
“cautioned” the appellant
that he would investigate his
travel and stated that he was “either asking for trouble if not
challenging me and my authority”
and added that “if it is
the last thing we must have between us I will comply”. That is
a threat of dismissal that
bore no relation to any of the charges
ultimately brought against the appellant. Nxele was threatening the
appellant with dismissal
if he continued to question the impropriety
of some of the appointments.
[93]
That such was the intention is confirmed by the message sent by Nxele
in response to receiving the
appellant’s letter of 14 February
2014, the terms of the letter of suspension and Mdletshe’s
evidence that Nxele said
he intended “to deal with” the
appellant. In the text message Nxele chastised the appellant for
assuming that he could
“
dictate
what must happen in this region” and added “there is no
correcting me here.” In the letter of suspension
Nxele was
concerned mainly with the appellant’s supposed undermining of
his authority and the allegations made about him
to the Acting
National Commissioner. The appellant was not charged with any
misconduct in that regard.
[94]
From the evidence viewed overall, therefore, it may reasonably be
inferred that the appellant would
not have been dismissed but for the
disclosures he made. Most of the charges were a fig leaf covering the
true reason for dismissal:
the protected disclosures. By his own
admission the appellant acted inappropriately in mentioning his
daughter’s application
to Khumalo. The evidence about what he
said and what was intended is insufficient to make a definitive
finding that he acted corruptly
in that regard. But even if this
conduct justified discipline of some kind, it at best served as a
secondary reason subordinate
to the most proximate or dominant
reason. The letter of suspension, its timing, the preceding threats
and the trumped up charges,
taken together, establish that it was
most likely that the appellant was suspended, and ultimately
dismissed, because he made protected
disclosures. His dismissal was
“on account, or partly on account, of having made a protected
disclosure” as contemplated
in section 3 of the PDA. Hence, the
dismissal of the appellant was in contravention of the PDA and
automatically unfair. The appeal
must accordingly succeed.
Relief
[95]
Section 193 of the LRA provides that where a dismissal is found to be
unfair the court may order reinstatement,
re-employment or
compensation. The court must order reinstatement or re-employment
unless: i) the employee does not wish to be
reinstated or
re-employed; ii) the circumstances surrounding the dismissal are such
that a continued employment relationship would
be intolerable; iii)
it is not reasonably practicable to reinstate or re-employ the
employ; and iv) the dismissal was merely procedurally
unfair. Section
194 of the LRA requires awards of compensation to be just and
equitable but limits compensation normally to 12
months’
remuneration. However, section 194(4) allows for awards of increased
compensation of up to 24 months where the dismissal
is automatically
unfair.
[96]
The appellant seeks the primary remedy of reinstatement. Counsel for
the respondents, Mr Moerane SC,
submitted that if the appellant’s
dismissal was found to be automatically unfair, an order of
reinstatement should not be
granted because the appellant’s
conduct has rendered the continuation of an employment relationship
intolerable. There is
merit in this submission. The evidence shows
that the appellant conducted himself in a less than honourable manner
both as a panel
member in some of the interviews and otherwise.
Despite knowing that Mbanjwa did not meet the criteria for
appointment, the appellant
highly recommended him. He admitted during
cross-examination that he had been complicit in the corruption with
regard to that appointment.
He also did not formally object to
Mathenjwa’s appointment despite knowing that he too was not
qualified for the position.
He raised these appointments (albeit a
while after the event) with Nxele, but failed to place on record his
justifiable concerns.
Moreover, when he brought these irregularities
to the attention of the Acting National Commissioner, he neglected to
disclose to
her that he had served on the panels recommending the
appointments.
[97]
Additionally, the appellant’s inappropriate behaviour in
relation to the applications involving
his family members, while
perhaps alone not sufficient to justify dismissal, reflects a
disconcerting lack of judgment in one of
such high rank in
correctional services. He escalated the problems for the attention of
the Acting National Commissioner only once
he felt unfairly treated
personally and possibly because his family was not given preference.
This was self-serving and discloses
a lack of the ethical calibre
required of an officer commanding a maximum security prison. His
conduct has undermined the trust
relationship to a degree that
renders the continuation of the employment relationship intolerable.
In the circumstances, reinstatement
is not an appropriate remedy.
[98]
An award of just and equitable compensation in lieu of reinstatement
must take account of the appellant’s
lengthy service, his age
and importantly our finding that the appellant suffered reprisal for
making a protected disclosure when
he should have been shielded from
further impropriety. Employers who act inappropriately against
whistle-blowers should expect
to be fittingly sanctioned. There is no
reason why costs should not follow the result in this case.
[99]
In the result, the following orders are made:
99.1
The appeal is upheld and the order of the Labour Court is substituted
by the following:
“
a)
The dismissal of the applicant is declared to be automatically
unfair.
b)
The respondents are ordered to pay the applicant 18 months
remuneration calculated at the rate of remuneration on the date of
dismissal.
c)
The respondents are ordered to pay the costs of the application.”
99.2
The respondents are ordered to pay the costs of this appeal.
_____________________
JR
Murphy
Acting
Judge of Appeal
I
agree
__________________
B
Waglay
Judge
President
I
agree
__________________
DM
Davis
Judge
of Appeal
APPEARANCES:
FOR
THE APPELLANT:
Adv P Schumann
Instructed
by Shepstone & Wylie Attorneys
FOR
THE RESPONDENTS: Adv
M Moerane SC and Adv L R Naidoo
Instructed
by The state attorney
[1]
Act
66 of 1995.
[2]
Act
26 of 2000.
[3]
He
was acquitted on an alternative charge to count 5, which is thus no
longer relevant.
[4]
See
J Grogan
Workplace
Law
(10
th
Ed) 181 et seq.
[5]
(1999)
ILJ 1718 (LAC).
[6]
Kroukam
v SA Airlink (Pty) Ltd
(2005) 26 ILJ 2153 (LAC) at 2207F.
[7]
Regulations
C 1.1 and 2.
[8]
Regulations
D1 and D5(b).
[9]
Regulations
D7 and D8(a).
[10]
Radebe
and Another v Premier, Free State Province & others
(2012) 33 ILJ 2353 (LAC) para 33.