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[2012] ZALAC 16
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State Information Technology Agency Ltd v Sekgobela (JA53/08) [2012] ZALAC 16; [2012] 10 BLLR 1001 (LAC); (2012) 33 ILJ 2374 (LAC) (6 June 2012)
13
REPUBLIC OF SOUTH AFRICA
THE LABOUR APPEAL COURT OF SOUTH
AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JA53/08
In the matter between:
STATE INFORMATION TECHNOLOGY
AGENCY (PTY) LTD
…...............................................................................
Appellant
and
PASELA JOHANNES SEKGOBELA
….................................................
Respondent
Heard: 23 February 2011
Delivered: 6 June 2012
Summary: Labour Law – section
192 of LRA – two stage process restated – employee has
burden to show dismissal
– employer has burden to show fairness
of dismissal
Dismissal – on account of
making a disclosure – employee has burden to show that
disclosure was protected - dismissal
automatically unfair
JUDGMENT
______________________________________________________________
MLAMBO JP
[1] This appeal is concerned with the
fairness of the dismissal of the respondent. The Labour Court (Basson
J) found that he was
unfairly dismissed and granted him relief. The
appeal is against that order with the leave of the Labour Court.
[2] The appellant is a company
registered under the Companies Act
1
and was established in terms of the
State of Information Technology Act.
2
The appellant will henceforth be
referred to in this judgment as SITA. The respondent was employed by
the appellant on 1 September
2002 as a Programme Manager in the SITA
D section of the appellant’s Projects Division.
[3] On 18 December 2003, the
respondent presented to the CEO of the appellant with a document in
which he raised a grievance regarding
his performance review done on
23 October that year. The other issue he raised related to what he
perceived to be irregularities
and non compliance with the
procurement policies of the appellant. His concerns related to what I
shall refer to as the CALMIS
implementation Project, the OSIS project
and Tender 0199. (I do not deem it necessary, for purposes of this
judgment, to detail
what these projects entailed.) The respondent
testified that his understanding was that he reached agreement with
the CEO that
his grievance regarding his performance review would be
attended to by his supervisor and that the CEO would attend to the
CALMIS
matter.
[4] On 9 February 2004, the respondent
submitted a letter, headed “Matters of concern at State
Information Technology Agency”,
to which he attached a bundle
of documents, comprising some 75 pages, to the Public Protector
regarding the issues he had raised
with the CEO. This was based on
his view that the CEO had done nothing in response to the complaint
he had referred to the latter.
He testified that by so doing he was
making a disclosure to the Public Protector about conduct he
perceived to amount to irregularities
occurring within the appellant.
He also made a referral of the same issues to the South African
Police Services. During August
2004, the Office of the Public
Protector referred the letter to the appellant requesting the latter
to investigate the allegations
made by the respondent. During the
same month the appellant subjected the respondent to disciplinary
action and subsequent to being
found guilty he was issued with a
warning but this was overturned on appeal.
[5] Thereafter a series of events took
place between the appellant and the respondent which attests to the
souring of the relationship
between the parties. For instance, the
respondent’s responsibilities were removed from him and he
responded with a grievance
and an unfair labour practice referral to
the Conciliation Mediation and Arbitration of South Africa (CCMA).
His responsibilities
were subsequently reinstated but on 26 January
2005, the respondent was suspended and was given a notice to attend
an incompatibility
hearing.
[6] The notice basically stated that
the respondent was incompatible with the appellant and its
management. This allegation was
based on a number of charges ranging
from refusal to cooperate with line management; a failure to attend
an investigatory disciplinary
hearing and failure to attend internal
management meetings. The note also alluded to the fact that the
respondent had referred
a complaint to the protector arising out of
use grievance, which was still being investigated internally, as well
as a charge that
he had laid a criminal complaint of alleged
corruption by line management with the South African police services.
The notice also
made mention of the fact that in the process of
laying the criminal complaint with the South African police services,
the respondent
had copied classified documents and provided them to
the South African Police Services without prior permission from the
appellant
and that this had resulted in a risk that restricted
information was disclosed without the consent of the appellant or its
management.
[7] The hearing was held on 8 February
2005 and the respondent was in attendance. From the record, it
appears that this hearing
was not concluded and meant to continue on
6 April 2005 but the respondent was absent. The respondent testified
that he was unaware
that the hearing was to continue on that day. The
respondent subsequently received a letter from the appellant on 4 May
2005, informing
him that he had been found guilty and was dismissed.
The respondent contested the fairness of his dismissal he referred a
dispute
to the CCMA for conciliation. The respondent alleged that his
dismissal was automatically unfair in terms of section 187 (1) (h)
3
of the Labour Relations Act.
4
This was based on his view that the
dismissal was an occupational detriment
5
in contravention of the Public
Disclosure Act
6
(PDA).
[8] The CCMA was however unable to
resolve the dispute through conciliation and the respondent referred
the matter to the Labour
court for adjudication. In his application
to the Labour Court, the respondent alleged that he had suffered an
occupational detriment
and prayed for appropriate relief. The matter
was eventually heard by the Labour Court on 3 February 2008. During
the trial the
respondent gave evidence in support of his claim of
being unfairly dismissed on account of having made a protected
disclosure within
the contemplation of the PDA. In the trial that
ensued in the Labour Court, the respondent gave evidence detailing
the background
leading to his dismissal as well as regarding his
allegations of wrongdoing within the appellant leading to him making
the disclosure
to the Public Protector.
[9] After the appellant’s legal
representatives concluded his cross-examination, they moved an
application for absolution
from the instance. The application was
refused and the appellant thereafter closed its case without adducing
any evidence. The
Labour Court found that he had indeed been the
victim of an occupational detriment and upheld his claim. The Labour
Court concluded
that his dismissal was automatically unfair and
awarded him compensation equalling to 24 months remuneration.
[10] In coming to its conclusion, the
Labour Court exhaustively analysed the evidence adduced by the
respondent as well as the PDA.
The Labour Court essentially found
that the respondent had made a disclosure within the contemplation of
the PDA and that he had
suffered an occupational detriment by being
dismissed on account thereof. This finding was based on the Labour
Court’s view
that the appellant was a public entity and as such
was subject to the Public Finance Management Act
7
(PFMA). In this regard, the Labour
Court’s view was that the appellant’s SITA Procurement
Policy and Procedures (the
SPPP), referred to by the respondent, was
a policy required by the PFMA in terms of which the appellant is
bound regarding procurement
transactions done on its behalf. The
Labour Court found that the disclosure made by the respondent to the
office of the Public
Protector was based on the respondent’s
view that there was an attempt by officials of the appellant to enter
into certain
tender transactions as referred to above without
compliance with the SPPP.
[11] The appellant’s case before
us is essentially that the respondent bore the burden to show that he
was dismissed as alleged
by him. This boils down to the question
whether he had shown that he had made a disclosure that is protected
within the contemplation
of the PDA. In this regard, it was argued
that he had not discharged such burden and that he had in fact made
no protectable disclosure.
On this basis, it was argued that the
Labour Court heard erred in upholding his claim and in awarding him
compensation which it
was contended was excessive.
[12] Perhaps the point of departure in
scrutinising this appeal is section 192 of the LRA. This section
provides:
‘
(1)
In any proceedings concerning any
dismissal
,
the
employee
must establish the existence of the
dismissal
.
(2)
If the existence of the
dismissal
is established, the employer
must prove that the
dismissal
is fair.’
[13] It is clear that section 192
provides for a two stage process in dismissal disputes. First the
employee who alleges that he/she
was dismissed must prove that there
was in fact dismissal and once the existence of the dismissal is
established then the employer
must prove that the dismissal was fair.
It is clear therefore that the
onus
to prove the existence of the
dismissal lies first on the employee. The word “must” in
section 192 means that the provisions
of the section are peremptory.
8
The employee must set out the facts
and legal issues which substantiate his assertion that a dismissal
occurred. Once the employee
has proved that dismissal did take place,
the
onus
is
shifted to the employer who must prove that the dismissal was for a
fair reason such as for instance misconduct.
[14] In
Kroukam
v SA Airlink (Pty) Ltd,
9
this Court held that it is not for an
employee to prove the reason for dismissal but to produce evidence
sufficient to raise the
issue and once this evidentiary burden is
discharged, the
onus
shifts to the employer to prove that
the dismissal was for a fair reason. See also
Stocks
Civil Engineering (Pty) Ltd v Rip NO and Another,
10
a case where the employer contended
that the employee had not been dismissed but that the contract of
employment was terminated
by mutual consent, the court at para 15
held that the arbitrator erred in not considering that there was an
onus
on
the employee to prove that he had been dismissed before there rested
an
onus
on
the employer to prove that the dismissal was fair.
[15] In cases where it is alleged that
the dismissal is automatically unfair, the situation is not much
different save that the
‘the evidentiary burden to produce
evidence that is sufficient to raise a credible possibility that an
automatically unfair
dismissal has taken place rests on the applicant
[employee]. If the applicant succeeds in discharging his evidentiary
burden then
the burden to show that the reason for the dismissal did
not fall within the circumstances envisaged by section 187(1) of the
LRA
rests with UNISA [employer].’
11
It is evident therefore that a mere
allegation that there is dismissal is not sufficient but the employee
must produce evidence
that is sufficient to raise a credible
possibility that there was an automatically unfair dismissal.
[16] In
JD
Group Ltd v De Beer,
12
where the employee was dismissed for
unauthorised possession of company monies, the court held that the
facts on which the reason
for dismissal was based must be established
objectively and the
onus
rests on the employer. The
court further held that since the employee was accused of theft, it
is incumbent on employer to establish
that the employer-employee
relationship had broken down to the extent that the continuation
thereof is not tenable. Furthermore,
it is clear that the fairness of
the dismissal rests on the employer to show that the assessment of
such fairness depends on the
factors proved and canvassed in
evidence. See
SACWU and
Others v Afrox Ltd,
13
a case involving the dismissal of
employees for operational reasons during a strike. The court at para
25 held that in the case
of an alleged automatically unfair
dismissal, the employer must prove that the dismissal was not
contrary to section 5 of the LRA
(which prohibits discrimination
against an employee for exercising any right conferred under the LRA)
and any reasons set out in
section 187 (1) (a)-(f).
[17] Before one considers whether the
appellant has in fact proven that the respondent’s dismissal
was for a fair reason,
one should also consider the impact, on the
burden of proof, of section 187 upon which the respondent’s
claim was based.
This section provides that '(1) A dismissal is
automatically unfair if... the reason for the dismissal is ... (h) a
contravention
of the
Protected Disclosures Act 2000
, by the employer
on account of an employee having made a protected disclosure defined
in that act.' The meaning of this section
is uncontroversial in that
for an employee to succeed in his claim that he was dismissed as is
alleged in this case for making
a disclosure, there is an evidentiary
burden on the employee to show that he indeed made a disclosure as
defined by the PDA and
that that was the reason for his dismissal.
What this section means is that for an employee who makes such an
allegation to succeed,
the court considering the claim must satisfy
itself that the disclosure alleged comes within the confines of the
PDA.
[18] Whether sufficient evidence has
been adduced either way is for a court to determine. The essential
question is that after the
court has heard all the evidence, it must
determine which party has discharged the
onus
resting on it. Clearly, therefore,
evidence plays a key role in this context and a failure to produce
any or sufficient evidence
is a risky option to take.
[19] Returning to the facts of this
case, it is common cause that the respondent was dismissed. That is
the first leg of the enquiry
in terms of
section 192.
He has also
given evidence to support his assertion that his dismissal was not
for the reasons stated in his letter of dismissal.
His case, pleaded
in his statement of case and backed by the evidence he gave under
oath, is that he was dismissed for blowing
the whistle on what he
viewed as irregular and non compliance issues on the part of the
appellant and its employees. The issue
therefore is whether the
appellant has discharged its burden of showing that the respondent
was dismissed, not as he has alleged
but for a fair reason as alleged
by it in its statement of defence.
[20] It is to that statement of
defence that I should first look for the reason advanced by the
appellant for the respondent’s
dismissal. In that pleading, the
appellant pleaded that the reasons for dismissing the respondent were
as alluded in para 6above.
Furthermore the appellant pleaded as
follows in para 32.2 of its statement of defence: ‘The charge
sheet only contained the
allegations levelled against the Applicant
[respondent]. The reasons for dismissal were clearly spelt out in a
letter dated 13
April 2005 and they were amongst others, a break down
in the employment relationship.’ And further in para 33.2 ‘It
is clear as per the charge sheet and the notice of dismissal that
Applicant [respondent] was found guilty and dismissed on various
charges of
misconduct
.
Applicant’s [respondent’s] conduct displayed a gross
insubordination and clear disregard of the Respondent’s
[appellant’s] policies and interests. 33.3 The Applicant
[Respondent] deliberately failed to comply with his conditions of
employment and/or work policies of the Respondent [Appellant] which
makes his conduct unacceptable.’ Based on these assertions
by
the appellant that it indeed dismissed the respondent it was
incumbent upon the appellant, in keeping with the dictates of
section
192
, to discharge the burden that it dismissed the respondent for a
fair reason.
[21] The appellant never participated
in the CCMA nor was any evidence tendered in support of its case. It
is also notable that
the appellant did not produce, for inclusion in
the record, the transcript of the disciplinary enquiry at which the
respondent
was found guilty and dismissed. This left the Labour Court
with the material at its disposal to determine if indeed the
respondent
was dismissed for a fair reason. The other side of the
coin is that the Labour Court also had to determine if the respondent
had
shown that “there was a credible possibility” that
his dismissal was automatically unfair on account of him having made
a disclosure that is protected in terms of the PDA. This was also the
argument advanced on behalf of the appellant, it being argued
that he
made no protectable disclosure.
[22] The material at the disposal of
the Labour Court comprised the pleadings, the discovered documents as
well as the respondent’s
evidence. I have already stated that
the respondent adduced extensive evidence regarding the background
leading to his dismissal
as well as the dismissal itself. I have
already stated that in upholding the respondent’s claim, the
Labour Court accepted
the respondent’s version. It is clear
from the record that in doing so the Labour Court took into account
the evidence produced
by the respondent as well as the fact that the
appellant produced no evidence to contradict what the respondent had
testified about.
[23] A brief examination of the
evidence tendered by the respondent in the Labour Court shows that
his view was that the charges
proffered against him were a
smokescreen for his dismissal. According to him, the reason for the
dismissal was for having made
the disclosure. Insofar as the
disclosure itself is concerned, his evidence was that the appellant
is a public entity falling within
the regulatory framework of the
PFMA. He testified in this regard that the appellant procurement
policy, the SPPP was a document
sanctioned by the PFMA and as such
was to be complied with in any procurement transactions concluded by
the appellant.
[24] The respondent testified that in
his view the appellant’s line management in dealing with the
three projects already
referred to above
14
were deviating from the SPPP and that
this is what prompted him to refer a grievance firstly to the CEO and
thereafter to the office
of the Public Protector. Even though the
respondent was cross-examined on the evidence he presented, he was
not seriously challenged
on the conclusions he made based on the
transactions he observed and which he testified motivated him to make
the disclosure to
the office of the Public protector.
[25] After considering the material
before it, the Labour Court was satisfied that the respondent had
been dismissed 'for an impermissible
reason'. It stated, with regard
to the reasons that were put up, as having been the basis for the
respondent’s dismissal,
that the appellant had produced no
evidence to contradict the respondents claim. The Labour Court also
found that the chairperson
of the disciplinary enquiry, who had
presided over the enquiry initiated against the respondent, had not
been called to testify
to explain and back up the decision to find
the respondent guilty. The court further found that it had not been
provided with a
transcript of that disciplinary enquiry which would
have provided it with the evidence that led the chairperson of that
enquiry
to find the respondent guilty on the charges proffered
against him. The ineluctable conclusion the Labour Court came to was
that
the appellant had, by not tendering evidence, failed to prove
its allegations that the respondent was dismissed for a fair reason.
The Labour Court found, as alluded to earlier, that the disclosure
made by the respondent was protected in terms and that he had
therefore suffered an occupational detriment within the contemplation
of the PDA and further that the dismissal was therefore automatically
unfair.
[26] The appellant has attacked the
reasoning and conclusions of the Labour Court on two essential bases.
The first one is that
the court failed to consider the disclosure
made by the respondent to the South African Police Services and
whether the respondent
had justified that disclosure. The other basis
is that the disclosure made to the Public Protector was neither
information nor
a disclosure as contemplated in the PDA. The
disclosure to the police did not feature in the deliberations of the
Labour Court.
The reason is that the respondent has not based his
claim on that disclosure but to the one made to the Public Protector.
It is
therefore ill conceived to seek to upset the judgment and order
of the Labour Court based on the disclosure to the police.
[27] It is the disclosure to the
public Protector that must be scrutinised. That disclosure falls to
be scrutinised in terms of
section 8
of the PDA which provides:
‘
8.
Protected disclosure to certain persons or bodies
1)
Any
disclosure
made in good faith
to—
a)
the Public Protector;
b)
the Auditor-General; or
c)
a person or body
prescribed
for
purposes of this section; and
in
respect of which the
employee
concerned reasonably believes that—
the
relevant
impropriety
falls within
any description of matters
which,
in the ordinary course are dealt with by the person or body
concerned; and
the
information disclosed, and any allegation contained in it, are
substantially true, is a
protected
disclosure
.
2)
A person or body referred to in, or
prescribed
in
terms of, subsection (1) who is of the opinion that the matter would
be more appropriately dealt with by another person or body
referred
to in, or
prescribed
in terms of, that subsection, must
render such assistance to the
employee
as is necessary to enable that
employee
to
comply with this section.’
[28] What has to be determined is
whether the disclosure was made in good faith by the respondent, that
he reasonably believed that
the wrongdoing he disclosed fell within
matters which, in the ordinary course are dealt with by the appellant
and that the information
he disclosed is substantially true. An
affirmative answer to these questions means that disclosure was
protected.
[29] It is apparent from the case made
out by the respondent that he disclosed information about conduct
that he considered to be
deviant and not in compliance with the SPPP.
The SPPP is the appellant’s policy and there is no evidence to
contradict the
respondent’s evidence that it is sanctioned by
the PFMA and as such was meant to be complied with by the appellant
in its
transactions. The respondent went further and explained why he
considered the conduct of the appellant’s line management to
be
deviant to the SPPP. Objectively speaking, the respondent’s
view in this regard has not been contradicted by countervailing
evidence and the Labour Court was clearly correct in making this
finding.
[30] There is, furthermore, nothing to
indicate that the respondent did not act in good faith and that that
he did not have reason
to believe that there was wrongdoing. The
Labour court had the benefit of the evidence of the respondent and
none from the appellant.
The court was therefore well-placed to
consider the disclosure made in this case. It is correct that the
respondent did not dwell
much on his disclosure to the South African
Police Service but this does not detract from the justice of his
conduct. That disclosure
is the same as the one made to the office of
the Public Protector and the effect that the South African Police
Service, may have
elected not to take that disclosure seriously does
not detract from the justification of the disclosure in itself.
[31] The legitimacy of any disclosure
does not depend on how it is treated by whoever it is made to. The
test remains whether the
person making disclosure is acting in good
faith and whether that person reasonably believes that there is an
impropriety. The
respondent in this case reasonably believes that the
information he disclosed to the office of the Public Protector is
true and
he had not been contradicted in that regard. The only
criticism levelled at his disclosure was that it is confusing so as
to be
no disclosure within the contemplation of the PDA. I do not
agree.
[32] Whether the belief held by a
whistleblower is reasonable is a question of fact and a court must
make a finding in that regard.
In
Street
v Derbyshire Unemployed Workers’ Centre
,
15
it was held that a court must assess
on a broad and common sense basis whether the disclosure meets the
requirements of the Act
and whether the disclosure was indeed made in
good faith and not with an ulterior motive such as personal
antagonism which might
have been the predominant purpose for making
the disclosure. See also
Darnton
v University of Surrey
,
16
where it was held that for a
disclosure to qualify for protection, it must show that the employee
reasonably believed that the information
disclosed and any allegation
contained in it was substantially true. The PDA does not, however,
require the employee to prove the
truth of the information
disclosed.
17
[33] I can therefore find no basis on
which to fault the Labour Court in coming to the conclusion it did.
The Labour Court was also
correct in making the conclusions it
arrived at based on the evidence before it. The respondent had indeed
made a disclosure that
is protected in terms of the PDA and that his
dismissal subsequential of him making such a disclosure amounted to
an occupational
detriment as defined in the LRA and as such was
automatically unfair. This conclusion cannot be faulted.
[34] Insofar as the relief is
concerned, the appellant has argued that this was excessive. I do not
agree. The PDA is a piece of
legislation that addresses a critical
area in the sphere of public finance and accountability. It is apiece
of legislation that
addresses the important constitutional objectives
of clean government and service delivery. Public entities have to be
scrutinised
strictly in terms of their dealings to ensure that they
deliver to the general public in terms of the mandate.
[35] In all the circumstances of this
case, the appeal must fail. An order is granted that:
The appeal is dismissed with costs.
_______________
Mlambo JP
Judge President of the Labour Appeal
Court
Jappie JA and Molemela AJA oncur in
the judgment Mlambo JP.
Appearances:
For the Appellant: Advocate G. I
Hulley
Instructed by: Maserumule Inc.
For the Respondent: Mr N. P. Voyi of
Ndumiso P. Voyi Attorneys
1
Act
no 61 of 1973, as amended.
2
Act
no 88 of 1998 as amended.
3
Section
187(1) (h)
(1)
A
dismissal
is
automatically unfair if the employer, in dismissing the
employee
,
acts contrary to
section
5
or,
if the reason for the dismissal is - a contravention of the
Protected Disclosures Act, 2000
, by the employer, on account of an
employee
having
made a protected disclosure defined in that Act.
4
Act
no 66 of 1995.
5
An
occupational detriment is defined in section 1 by reference to a
number of instances that could occur in the employment environment
arising from the making of a disclosure by an employee such as
subjecting an employee to any disciplinary action; dismissing,
suspending, demoting, harassing or intimidating an employee.
6
Act
no 26 of 2000.
7
Act
no 1 of 1999.
8
CWU
v Johnson and Johnson (Pty) Ltd
[1997] 9 BLLR 1186
(LC) as cited
by D du Toit el al
Labour Law Through the Cases
(2011,
LexisNexis Durban) at 8-103; see also
De Beers Consolidated Mines
Ltd v CCMA and Others
[2000] 9 BLLR 995
(LAC) at para 50.
9
[2005]
12 BLLR 1172
(LAC) at paras 27 and 28 as
per
Davis AJA.
10
(2002)
23 ILJ 358 (LAC).
11
Maimela
v UNISA
[2009] ZALC 52
at para 32.
12
(1996)
17 ILJ 1103 (LAC) at 1115 H.
13
[1999]10
BLLR 1005 (LAC) at para 25.
14
At
para 10.
15
[2004]
EWCA Civ 964
;
[2005] ICR 97
;
[2004] 4 ALL ER 839.
16
[2002] UKEAT 882_01_1112
;
[2003]
IRLR 133
(EAT).
17
Communications
Workers Union v Mobile Telephone Networks (Pty) Ltd
(2003) 24 ILJ 1670 (LC) at para 21.