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[2024] ZALCJHB 121
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Ntombela v Community Scheme Ombud Service and Others (J1631/23) [2024] ZALCJHB 121 (12 March 2024)
FLYNOTES:
LABOUR – Disciplinary hearing –
Protected
disclosure
–
Alleged
occupational detriment – Email transmitted by applicant to
respondent is a disclosure – Discloses what
she believes to
be acts of maladministration and malfeasance – Applicant has
met jurisdictional requirements –
No evidence which
indicates applicant made disclosure with reckless abandon, malice
or presence of ulterior motive –
Disclosure made in good
faith – Protected Disclosure Act 26 of 2000.
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: J 1631/23
In
the matter between:
WENDY
LIHLE NTOMBELA
Applicant
And
COMMUNITY
SCHEME OMBUD SERVICE (CSOS)
First
Respondent
MAATLA
HLAPOLOSA
N.O
Second
Respondent
THE
COMMISSION FOR CONCILIATION MEDIATION
AND
ARBITRATION
Third
Respondent
Heard:
28 November 2023
This
judgment was handed down electronically by consent of the parties’
legal representatives by circulation to them via email.
The date for
hand-down is deemed 12 March 2024.
JUDGMENT
NGWENYA,
AJ
Introduction.
[1] The
Applicant, has approached the Court seeking two categories of urgent
relief, first to interdict
the internal disciplinary action which has
been instituted by the First Respondent and second, to review and set
aside a decision
by the Second Respondent in his capacity as the
disciplinary hearing chairperson.
[2] The
application concerns section 188A(11) of the Labour Relations Act, 66
of 1995 (“LRA”)
and in particular, the legal consequences
of an employee, such as the Applicant, having engaged section
188A(11) of the LRA. Given
the narrow legal question, I will deal
briefly with the facts giving rise to this application.
[3]
But
first, there was a challenge to the urgency of this application,
however, I am satisfied that the Applicant has made out a case
for
urgency. Any complaint about the delay in launching these
proceedings, does not offset my finding that the Applicant will not
obtain substantial redress at a hearing in the ordinary course
[1]
.
The
Relevant Facts Giving Rise to this Application
[4] The
Applicant is employed by the First Respondent as a Manager: Legal
Services. The Applicant’s
employment, it is common cause,
commenced during or about 2 February 2020.
[5] During
or about 22 August 2023, the Applicant emailed the Chairperson of the
First Respondent’s
Audit and Risk Committee. It is pleaded that
in the email, which was transmitted to the Chairperson of the
committee and its members,
the Applicant disclosed
inter
alia
the following:
a. Maladministration
and malfeasance on the contract with the panel attorneys by senior
management.
b. Preferential
treatment by the Chief Ombud of attorneys of the First Respondent’s
panel of
attorneys.
c. Overcharging
and/or overreaching of legal fees by attorneys on the panel attorneys
contrary to the
agreed tariff.
d. Insistence
by the Chief Ombud to approve invoices where panel attorneys have
overcharged the First
Respondent for services rendered or have not
rendered such services.
e. Disregard
for the segregation of duties and abuse of power by certain senior
officials within the
First Respondent, particularly from the Office
of the Chief Ombud.
f. Fruitless
and wasteful expenditure.
[6] A
copy of the email correspondence is attached to the Applicant’s
founding affidavit.
[7] The
following day, on 23 August 2023, the Applicant received a
notification of an intention to
place her on precautionary
suspension. The notification was issued by the Executive Corporate
Services, who the Applicant alleges
is implicated in the email
disclosure. The Applicant was given an opportunity to make written
submissions as to why she should
not be placed on suspension, and on
24 August 2024 the Applicant was placed on suspension.
[8] On
18 October 2023, the Applicant referred an unfair labour practice
dispute relating to her suspension.
Among the grounds of unfairness
which the Applicant raised is that her suspension entails an
occupational detriment in contravention
of the Protected Disclosure
Act, 26 of 2000 (“PDA”).
[9] On
27 October 2023, the Applicant was served with a notice to attend a
disciplinary enquiry. On
31 October 2023, the Applicant referred a
dispute to the Commission for Conciliation Mediation and Arbitration
(“CCMA”)
in terms of section 188A(11), in which the
Applicant requested that the disciplinary enquiry be conducted in
terms of section 188A(11).
The referral was accepted by the CCMA and
the Applicant paid the required fee.
[10] On
1 November 2023, the disciplinary enquiry was scheduled to proceed
and was chaired by the Second
Respondent, as the internal
chairperson. The Applicant moved an application in which she sought
the following relief:
“
1,
the disciplinary proceedings before the appointed presiding officer
is terminated.
2,
The inquiry into the allegations against the employee is to be
conducted by an arbitrator appointed by the CCMA in terms of
section
188A(11)
of the
Labour Relations Act 66 of 1995
.”
[11] The
Applicant and the First Respondent exchanged pleadings concerning the
application. On 14 November
2023 the Second Respondent issued a
ruling dismissing the Applicant’s application and finding that:
50.1
The employee has not satisfied the requirements for the alleged
protected disclosure to be worthy of protection in terms of
the
definition of the Protected Disclosure Act.
Accordingly,
the disciplinary hearing before me is to continue and not be dealt
with in accordance with the requirements of
s 188A(11)
of the
Labour Relations Act.
>
[12] This
application was launched by the Applicant against this background.
Analysis
[13]
This
Court, in
Jacobs
and Others v National Commissioner of South African Police Service
and Another
[2]
,
set
out the principles which are applicable to the interpretation of
section 188A(11)
as follows:
“
[20]
To understand the extent of application of subsection (11) of
section
188A
, subsection (12) thereof is instructive. It is convenient to set
out both subsection (11) and (12) of
section 188A:
(11)
Despite subsection (1), if an employee
alleges in good faith
that the holding of an inquiry contravenes the Protected Disclosures
Act, 2000 (Act No. 26 of 2000), that employee or the employer
may
require that an inquiry be conducted in terms of this section into
allegations by the employer into the conduct or capacity
of the
employee.
(12)
The holding of an inquiry by an arbitrator in terms of this section
and the suspension of an employee on full pay pending the
outcome of
such an inquiry do not constitute an occupational detriment as
contemplated in the Protected Disclosures Act, 2000 (Act
No. 26 of
2000).
[21]
Obviously, section 188A(11) is not necessarily a scheme to challenge
the alleged occupational detriment in terms of the PDA,
per se.
However, it is a mechanism aimed at avoiding collateral litigation
where an employee claims that, the holding of a disciplinary
enquiry
into allegations of misconduct or suspension pending such an enquiry,
offends the provisions of the PDA. Whilst the PDA
protects employees
who make a protected disclosure, “section 188A(11) aims to
strike a balance between taking no action because
the person
allegedly guilty of misconduct is a whistle-blower in terms of PDA or
allowing a disciplinary process, with the safeguard
being that the
disciplinary process has to be done in a manner that is entirely
independent of the employer. In Nxele, this Court
pertinently held
that:
“
[31]
In my view, the only proper construction to be accorded to section
188A(11) is that,
where
an employee or employer requires a pre-dismissal arbitration in terms
of section 188A, that request it is imperious. This
construction
gives effect to the purpose of the legislature which is to provide a
degree of protection to employees who make protected
disclosures and
to avoid parallel litigation, typified in the present case.
[32]
Basically, following a section 188A(11) request by the employee, the
employer is enjoined to institute a pre-dismissal arbitration
in
terms section 188A. The internal disciplinary enquiry that would have
commenced and is pending must terminate…”’
(own
emphasis and footnotes omitted)
[14]
In
Tsibani
v Estate Agency Affairs Board and Others
[3]
the
Court explained the effect of section 188A(11) referral in the
following terms:
‘
[63]
Section 188A(11) is to be understood in the specific context within
which it was enacted and is to be applied. Section 188A
provides for
the appointment of an arbitrator to conduct an inquiry into
allegations about the conduct or capacity of an employee.
Such a
process is on request by an employer, with the consent of the
employee, or in accordance with a collective agreement and
is to be
made in the prescribed form and a prescribed fee is payable. Section
188A(11) provides that if an employee alleges in
good faith that the
holding of an inquiry contravenes the PDA, that employee or the
employer, may require that an inquiry be conducted
in terms of
section 188A, into the allegations by the employer into the conduct
or capacity of the employee. The holding of such
an inquiry does not
constitute an occupational detriment, as contemplated in the PDA.
[64]
Section
188A(11) entitles an employee, who is about to be subjected to an
internal disciplinary process and who alleges in good
faith that the
intended disciplinary hearing contravenes the PDA, to instead request
an inquiry be conducted in terms of section
188A. I see no reason
why, if an employer , under circumstances where the employee complies
with the requirements of section 188A(11),
refuses to have the
inquiry into the conduct or capacity of the employee conducted in
terms of section 188A, the employee would
not be entitled to approach
this Court for an order interdicting the impending internal
disciplinary hearing and an order directing
that the inquiry
pertaining to the employee’s conduct or capacity be conducted
in terms of section 188A of the LRA.’
(Emphasis added)
[15] There
is no dispute between the parties concerning the interpretation of
section 188A(11), the
main area of dispute between the parties is
whether the Applicant has made a disclosure in good faith. This, the
First Respondent
contends is a requirement given that section
188A(11) refers to an employee who
“alleges
in good faith
” that the
holding of an inquiry contravenes the PDA.
[16] I
am in agreement with the Applicant’s argument that this Court
has consistently interpreted
section 188A(11) to be that, once an
employee invokes section 188A(11), the employer is enjoined to
institute a pre-dismissal arbitration
in terms of section 188A. The
internal disciplinary enquiry that would have commenced and is
pending must terminate.
[17]
However,
the internal inquiry cannot simply terminate if an employee has not
met the jurisdictional requirements. The jurisdictional
requirements
were set out by the Court to in
Mamodupi
v Property Practitioners Regulatory Authority
[4]
as:
a. That
the employee has made a protected disclosure.
b. That
employer has subjected the employee, who already made a protected
disclosure to an occupational
detriment.
c. Once
so subjected, an employee must allege honestly and sincerely, that a
causal connection exists
between his or her protected disclosure and
the occupational detriment.
[18] In
my view, the Applicant has clearly met the jurisdictional
requirements provided for in
Mamodupi
.
[19] Firstly,
there can be no doubt that the email transmitted by the Applicant to
the First Respondent’s
Audit and Risk Committee is a
disclosure. It meets the definition of a disclosure in the PDA
which is:
"disclosure"
means 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 one or more of the following:
(a) That
a criminal offence has been committed, is being committed or is
likely to be committed;
(b) that
a person has failed, is failing or is likely to fail to comply with
any legal obligation to
which that person is subject;
(c) that
a miscarriage of justice has occurred, is occurring or is likely to
occur;
(d) that
the health or safety of an individual has been, is being or is likely
to be endangered;
(e) that
the environment has been, is being or is likely to be damaged;
(f) unfair
discrimination as contemplated in the Promotion of Equality and
Prevention of Unfair Discrimination
Act, 2000 (Act No. 4 of 2000); or
(g) that
any matter referred to in paragraphs (a) to ( f ) has been, is being
or is likely to be deliberately
concealed;
[20]
The
question of good faith still remains, and the Court in
Radebe
& Another v Premier, Free State Province and others
[5]
explained how good faith may be inferred, as follows:
‘
[35
]…
Whilst
good faith and honesty may conceivably amount to the same thing, I am
of the view that a case by case approach is the proper
one for a
court considering these issues. Factors such as reckless abandon,
malice or the presence of an ulterior motive aimed
at
self-advancement or revenge, for instance, would lead to a
conclusion of lack of good faith. A clear indicator of lack
of good
faith is also where disingenuity is demonstrated by reliance on
fabricated information or information known by the employee
to be
false.
The
absence of these elements on the other hand is a strong indicator
that the employee honestly made the disclosure wishing
for
action to be taken to investigate it.’
‘
[36]
Simply stated if an employee discloses information in good faith and
reasonably believes that the information disclosed shows
or tends to
show that improprieties were committed or continue to be
committed then the disclosure is one that is protected.
The
requirement of 'reason to believe' cannot be equated to personal
knowledge of the information disclosed. That would set so
high a
standard as to frustrate the operation of the PDA. …’
[21] There
is no evidence before this Court which indicates that the Applicant
made the disclosure
with “
reckless
abandon, malice or the presence of an ulterior motive aimed at
self-advancement or revenge”
.
Rather it appears to me that the disclosure was indeed made in good
faith. The Applicant explains in the email correspondence
that the
issues were previously raised with senior management; the Applicant
discloses what she believes to be acts of maladministration
and
malfeasance and undertakes to provide evidence of engagements on the
issues upon further request.
[22] It
is important to appreciate that it is not necessary for the purposes
of establishing good faith
that it be proven that information
disclosed was correct or true. By definition, and in making the
disclosure, the employee must
only have ‘reason to
believe’, not that the information is actually true, but that
the information ‘shows’ or
‘tends to
show’ that the impropriety ‘has been’ or
‘is being’ or ‘may
be’ committed
in the future.
[23]
In
applying these concepts, the Court
in Baxter
v Minister of Justice and Correctional Services and
Others
[6]
held:
‘…
it
is important to note that the PDA does not require that the
disclosures made are factually correct. The phrase ‘tends to
show’ in
s
1
of
the PDA intends that it is sufficient if the information in the
disclosure is indicative of an impropriety. 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.’
[24] Based
on the above I am satisfied that the Applicant made a protected
disclosure.
[25] The
second and third jurisdictional enquiry can briefly be considered
together. A day after the
Applicant made the protected disclosure,
she was informed of an intention to place her on suspension. The
Applicant, as a consequence,
has met the requirements of the second
and third jurisdictional requirement. My view is additionally
fortified by the nature of
the allegations of misconduct which relate
to matters which took place as far back as 2020 and it does not
appear to me that these
are matters that required the employer to
wait three years to bring allegations of misconduct.
[26] I
am satisfied that the Applicant has made out a case for the relief
sought.
[27]
The
Applicant has additionally launched a review of the Second
Respondent’s ruling contending that the internal disciplinary
inquiry will proceed. The review application is pleaded in terms of
section 158(1)(h) of the LRA and appears to be pleaded on contingent
terms. Given the decision I have arrived at above, it is not
necessary to deal with the review application. However, for the sake
of completeness, I am not satisfied that in this case, the Applicant
has made out a case to engage the Court’s power to review
and
set aside a ruling of an chairperson of an internal hearing.
[7]
Costs
[28] Guided
by section 162 of the LRA, a costs order is not warranted in these
proceedings.
[29] In
the premise I make the following order:
Order:
[30] The
application is dealt with as an urgent application in terms of Rule
8.
[31] The
disciplinary proceedings against the Applicant are to be conducted by
way of an inquiry by
an arbitrator in terms of
section 188A
of the
Labour Relations Act, 66 of 1995
.
[32] The
internal disciplinary proceedings against the Applicant are
interdicted.
[33] No
order as to costs.
Z
NGWENYA
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Advocate R Itzkin (with him
Advocate M Moolla)
Instructed
by:
Zaheera Bobat Attorneys
For
the Respondent: Advocate R Masipa
Instructed
by: Marivate
Inc
[1]
East
Rock Trading 7 (Pty) Ltd & Another v Eagle Valley Granite (Pty)
Ltd [2011] ZAGPJHC 196 also [2012]
[2]
Unreported
Judgment, Labour Court Johannesburg, Case number J 1942/21, 12 March
2021
[3]
Unreported
J642/2021 [2012] ZALCJHB 150 (24 June 2021)
[4]
[2023]
ZALCJHB 19 (13 February 2023)
[5]
(2012)
33 ILJ 2353 (LAC)
[6]
(2020)
41 ILJ 2553 (LAC)
[7]
South
African Broadcasting Corporation v Keevy & Others
[2020] 6 BLLR
607
(LC); Gcaba v Minister of Safety and Security
[2009] 12 BLLR
1145
(CC)