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[2013] ZALCJHB 284
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Lowies v University of Johannesburg (JS 1062/2009) [2013] ZALCJHB 284; (2013) 34 ILJ 3232 (LC) (30 April 2013)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Reportable
Case no: JS 1062/2009
In the matter between:
ADOLF LOWIES
.................................................................................................
Applicant
And
THE UNIVERSITY OF JOHANNESBURG
....................................................
Respondent
Heard
:
15 – 18 April
2013
Delivered: 30 April 2013
Summary: Protected disclosure in
terms of the provisions of section 1(i)(a) and section 6 of the
Protected Disclosures Act.
JUDGMENT
PRINSLOO, AJ
Introduction
The
Applicant, Dr Adolf Lowies, approached this Court for relief on the
basis that he was subjected to an occupational detriment
after he
made a protected disclosure in terms of the Protected Disclosures
Act
1
(the PDA). He claims that his
dismissal was automatically unfair.
The Applicant disclosed information
related to private Saturday work performed on the premises of the
Respondent by other psychologists
in the employ of the Respondent.
The Respondent disputed that any
disclosure was made and denied that the Applicant was dismissed for
reasons related to the alleged
disclosure. The Respondent’s
representative, Mr Lennox, even submitted that the Applicant’s
case is motivated by
money.
Before turning to the merits of the
case, it is necessary to give a brief overview of the Applicant’s
employment, the framework
within which the Respondent operates and
the disciplinary action taken against the Applicant.
Background
The Applicant, Dr Adolf Lowies, is an
educational psychologist and was employed as a student counsellor in
July 2004 by the Technikon
Witwatersrand (‘TWR’). This
employment followed after he applied for an advertised position. The
requirements of
the position of student counsellor were set out in
the advertisement and full registration as an educational
psychologist with
the Health Professions Council of South Africa
(‘HPCSA’) for at least three years was required. The
duties attached
to the position included counselling to students.
The Applicant submitted his
curriculum vitae wherein he indicated his qualifications,
professional memberships and work experience.
As part of his
professional memberships Dr Lowies indicated ‘
psychologist:
registration number PS0048135 Health Professions Council of South
Africa (HPCSA)’.
This created the impression that he was
indeed registered with the HPCSA at the time when he submitted the
application and under
cross-examination he conceded that no other
impression could have been created.
On 1 January 2005 the TWR and the
Randse Afrikaanse Universiteit (‘RAU’) formally merged
to become the University
of Johannesburg (‘UJ’), the
Respondent in this matter.
A number of committees were formed to
ensure a smooth transition and to facilitate the merger. The
Applicant served on a number
of these committees and he was the
vice-chairperson of the financial committee. He wrote letters on
behalf of at least three
other employees asking questions and making
enquiries about certain issues which could have had a financial
implication and of
which they were unaware. The Applicant and the
other employees called for transparency and the sharing of
information. In a letter
dated 22 July 2008 the Applicant (and
others on whose behalf he wrote the letter) requested that certain
projects be shared so
that it could be better understood and to
allow for comment and future participation in the opportunities. The
projects so referred
to included the Saturday assessment of students
and the questions
inter alia
were directed to the fact that
ex-TWR employees were not invited to participate in the projects and
were thus not earning additional
income.
On 9 September 2008 the Applicant
wrote a letter to Professor Morgan, raising a formal complaint. This
letter, according to the
Applicant’s statement of case,
constituted the disclosure wherein he disclosed corrupt and
fraudulent activities at the
UJ. The corrupt and fraudulent
activities included colleagues doing private consultation work in
their professional capacities
on Saturdays, for which they were
remunerated, whilst purporting to be doing the work in their
official capacities for the UJ.
The colleagues were abusing the
facilities and support staff of the UJ and there was a mismanagement
of funds and misuse of property.
The Applicant stated that the
disclosure was made to Professor Morgan as the Executive Director of
Human Resources and he was
the appropriate person in accordance with
the Respondent’s whistle blower policy to whom such disclosure
was to be made.
During November 2008 the Applicant
had a discussion with the Respondent’s Ms Trudie le Roux,
regarding the appointment of
supervisors to intern psychologists and
the Applicant indicated that he would be interested in being
appointed as a supervisor
to an intern for the year 2009. The
supervision of a psychologist intern is voluntary and in order to
process and finalise the
appointment of supervisors for the
psychologist interns, Ms le Roux required the registration numbers
of the volunteering psychologist
with the HPCSA. On 26 November 2008
the Applicant sent an electronic mail to Ms le Roux indicating his
registration numbers with
the HPCSA as educational psychologist and
as counselling psychologist.
The Applicant was subsequently
allocated to a counselling intern psychologist as a supervisor. The
Applicant was however not registered
as a counselling psychologist
with the HPCSA and he could not act as a supervisor for such an
intern. Professor Pretorius became
aware of the fact that the
Applicant was appointed as a supervisor to a counselling
psychologist intern when she was to sign
the letters to the interns.
Professor Pretorius contacted the Applicant and confronted him with
the fact that he was not registered
as a counselling psychologist
and could not act as a supervisor in that category.
Professor Pretorius explained that in
order to act as a supervisor to an intern, the psychologist has to
be registered in the
same category as the intern, in other words
only a registered counselling psychologist could act as a supervisor
to a counselling
intern psychologist. If that is not the case, it
could have severe consequences for the UJ and for the intern.
Subsequently and on 28 November 2008
the Applicant tendered an explanation and an apology to Professor
Pretorius and Ms le Roux
for the electronic mail he has sent
indicating that he was registered as a counselling psychologist. He
submitted that he was
in fact only registered as an intern
counselling psychologist and he explained that he sent both
registration numbers to Ms le
Roux because he ‘
wrongfully
thought that the themes would only be discussed with the educational
interns and included the registration number of
the counselling
because I thought that both groups would have benefited
from
this and the fact that I completed the theory on counselling it
would have enabled me to discuss the themes with both groups
and
that I am adequate to present same to both groups...’
The apology and explanation so
tendered on 28 November 2008 had not been accepted by Professor
Pretorius and Ms le Roux and the
Respondent initiated an
investigation into the registration of the Applicant with the HPCSA.
Shortly thereafter the UJ closed for
December as it was the end of the academic year and in January 2009
the HPCSA informed Professor
Pretorius that the Applicant was
registered as an educational psychologist on 10 February 1995, that
he was not registered as
a counselling psychologist and that his
name was removed from the register of psychologists on 3 September
2002 for failure to
pay annual fees and was restored on 15 April
2005.
Subsequently and on 19 January 2009
the Applicant was charged with misconduct and four charges of
misconduct were levelled against
him. The hearing was set down for 3
February 2009, but the Applicant requested a postponement in order
to consult his lawyer
and the hearing was postponed for two weeks.
The charges will be dealt with in full detail.
The Applicant was found guilty of
misrepresentation and gross dishonesty as per charge 1 and he was
also found guilty of charges
2 and 3. Dismissal was recommended as
an appropriate sanction.
The Applicant has not during his
disciplinary enquiry raised the fact that he made a disclosure,
which he believed to be protected
and the reason for him being
subjected to a disciplinary enquiry. On 14 April 2009 the
Applicant’s attorney submitted a
leave to appeal against the
findings of guilty and the sanction of dismissal. Once again, no
mention was made of the protected
disclosure and the occupational
detriment.
The leave to appeal was refused and
on 12 May 2009 the Applicant’s attorney filed a petition to
the Vice-Chancellor in terms
of the provisions of the Respondent’s
disciplinary code and procedure. In the conclusion of the petition
it was submitted
that the Applicant was charged with misconduct
after he questioned certain practices regarding private work being
done by professionals
during official working hours, misuse of
property, fraudulent actions and mismanagement of funds and that he
was in fact a whistleblower
and the disciplinary action constituted
an occupational detriment in terms of the PDA.
The petition was refused and the
Applicant was finally dismissed with effect from 8 June 2009.
The Applicant referred a dispute to
the Commission for Conciliation, Mediation and Arbitration in June
2009 and subsequently filed
a statement of case with this Court.
Chronology of events and the
disputed disclosure of 4 November 2008:
The Applicant included in his bundle
of documents a ‘Formal report on fraud, conflict of interest,
corruption, misuse of
University funds, gross dishonesty, misuse of
university facilities’ dated 4 November 2008. This report is
addressed to
Mr Lungu, the Respondent’s Director: Employee
Relations. The Respondent objected to this document and argued in
closing
that the report is nothing but a fabrication that was
manufactured afterwards to assist the Applicant in his case.
In my view it is prudent to consider
the chronology of events specifically with reference to the report
dated 4 November 2008.
In the initial schedule of documents
attached to the Applicant’s statement of case no mention was
made of the letter or
report to Mr Lungu, dated 4 November 2008. It
was included for the first time in the schedule of documents
attached to the amended
statement of case dated 20 September 2011.
No mention of the letter dated 4
November 2008 was made during the disciplinary enquiry, the leave to
appeal and the subsequent
petition.
The Applicant testified that he left
the letter at the secretary to Mr Lungu and he made no follow up
after he left the letter
with her on 4 November 2008, he also did
not receive any feedback or response from Mr Lungu. The Applicant
could not provide
the name of the secretary with whom he left the
letter. The Respondent’s case is that Mr Lungu did not have a
secretary,
the letter dated 4 November 2008 was never received by
the Respondent and it was seen for the first time when the
Applicant’s
bundle was made available, shortly before
commencement of this trial.
In the Applicant’s statement of
case, which he had the opportunity to amend in September 2011, it is
stated that the disclosure
was made on 9 September 2008 in a letter
to Professor Morgan. The Applicant further specified the legal
issues to be decided
by this Court are whether the disclosure made
on 9 September 2008 was the dominant cause of the Applicant’s
dismissal and
whether that disclosure was made in compliance with
the Respondent’s ‘Whistleblower Policy’. No
mention is
made of the disclosure made on 4 November 2008 and no
reliance is placed on the report submitted to Mr Lungu.
There is no explanation tendered by
the Applicant on why the letter was not included in his initial
schedule of documents or why
it is not mentioned at all in his
statement of case, despite the fact that the Applicant was aware
from the onset that the Respondent
was disputing the letter of 4
November 2008 and regarded it as a fabrication that was manufactured
afterwards to assist the Applicant.
Whether the letter was indeed
fabricated or not, is neither here nor there as the letter dated 4
November 2008 cannot be considered
as part of the disclosure the
Applicant made – simply because the Applicant is bound by his
case as set out in the statement
of case wherein he made no mention
of any disclosure he made on 4 November 2008. He only referred to
the disclosure he made on
9 September 2009.
The disclosure made by the
Applicant:
The disclosure made on 9 September
2008 needs some detailed consideration. It is evident from the
Applicant’s statement
of case that the disclosure he made is
contained in the letter to Professor Morgan dated 9 September 2008
and he confirmed in
Court that the disclosure related only to the
performing of Saturday work. The consideration of the disclosure
made by the Applicant
should be limited to these two aspects.
The letter dated 9 September 2008
addressed to Professor Morgan bears the following heading: “Formal
complaint on the psycad
merger process and outcomes.” In the
introduction the Applicant stated that he lodged the complaint as a
concerned and
loyal member of staff who has run out of options and
he felt a deep sense of resentment and anger and therefore his
complaint
would probably be biased.
The disclosure in respect of private
Saturday work is contained in paragraph 4 of the letter. The
Applicant stated that some employees
had a roaring Saturday private
practice assessing UJ students at UJ facilities that generated a
huge income for them and they
used UJ staff to do the work. No
financial report was ever done on the income so generated and no
disclosure was made to the
financial committee on which the
Applicant served as a member. The Applicant then stated that
“Fortunately our new director
put a stop to this.”
On the Applicant’s own version
the Saturday work practice had been stopped by 9 September 2008,
when he lodged the complaint.
The Respondent provides psychological
services (which could include trauma or other counselling, career
advice etc) to its registered
students and the services so rendered
are rendered by the psychologists employed by the UJ and are free of
charge. It is common
cause that the psychologists who rendered the
services to the students, had to be registered with the HPCSA.
The Applicant testified that he heard
rumours that some psychologists employed by the Respondent did
assessments at the UJ premises
on Saturdays. He testified that he
was told that the UJ students were advised or persuaded to be
assessed on a Saturday, when
a fee was payable, rather than on a
weekday when the service was free of charge. He further testified
that he was told that students
were informed that the Saturday
assessments were compulsory. The Applicant conceded that he had no
idea what happened to the
money generated by the psychologists who
assessed clients on a Saturday at the UJ premises.
The Applicant relied on rumours and
what others told him. He did not call any witness to corroborate the
version of events he
testified others told him. He conceded under
cross-examination that he had no proof of who were actually assessed
on Saturdays
and he had no proof that any UJ student ever paid for
the services rendered on a Saturday. The Applicant conceded that
prospective
students might be required to pay for the assessments.
Ms Le Roux, who testified for the
Respondent, stated that she was part of the group of psychologists
who assessed and consulted
clients on a Saturday at the UJ premises.
She testified that they had permission from the relevant director
and the UJ management
was fully aware of the fact that they did
assessments on the UJ premises on a Saturday, they paid 10% of the
income generated
to the UJ for the use of the facilities and she
specifically stated that no UJ students were consulted on a Saturday
or were
ever requested to pay for assessments or consultations. She
explained that the assessments on Saturdays were done for persons
out of town who wanted an assessment and the results thereof on the
same day or it was assessments of prospective students, not
yet
registered with the UJ.
The Applicant conceded that
psychologists employed by the UJ could obtain permission to conduct
private practice work and there
was nothing untoward in doing that.
He testified that he was unaware that the psychologists who
performed assessments on Saturdays
had in fact obtained permission
from the head of the department. He only acted on rumours he heard.
Analysis of the disclosure made by
the Applicant:
In
Tshishonga v Minister of
Justice and Constitutional Development and another
2
it was held:
‘
The
PDA is conceived as a four-staged process that begins with an
analysis of the information to determine whether it is a disclosure.
If it is, the next question is whether it is protected. The third
stage is to determine whether the employee was subjected to any
occupational detriment and lastly, what the remedy should be for such
treatment. It is not an enquiry into wrongdoing but about
whether the
employee deserves protection. Structured in this way the inclination
to shift the emphasis from the conduct and credibility
of the
wrongdoer to that of the whistleblower is real.’
1.
Is the information disclosed by
the Applicant a ‘disclosure’ as defined in the PDA?
Section 1 of the PDA defines a
disclosure as follows:
(i)
‘‘
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’.
The Applicant in his statement of
case, claims that he disclosed corrupt and fraudulent activities at
the UJ and that the disclosure
pertained to misuse of UJ property
and mismanagement of funds. This would fall within the ambit of
section 1(i)(a) of the PDA.
The Applicant did not adduce any
evidence showing corrupt and fraudulent activities or the misuse of
property or mismanagement
of funds relating to the Saturday work. In
fact, he conceded that he had no idea what happened to the money
generated by the
Saturday work – this does not support his
allegation that there was a mismanagement of funds, corruption or
fraudulent
activities.
The complaint he raised in respect of
private Saturday work was motivated by his own unhappiness with the
fact that he did not
share in the opportunity to earn additional
income. The document submitted to Professor Morgan contained a list
of complaints
the Applicant wanted to raise as a result of the
Psycad merger and it also set out principles the Applicant was not
prepared
to negotiate on. The complaint he raised regarding Saturday
work in paragraph 4 of the letter, and which on his own version, is
the disclosure, had been stopped at the time he submitted the
letter.
The evidence adduced by the
Respondent showed that the UJ was fully aware of the work the
psychologists were performing on Saturdays
and that they had
permission to do so and a percentage of the income generated was
paid to UJ for the use of the facilities.
I am not convinced that the Applicant
made a disclosure of information regarding conduct as contemplated
in section 1(i) (a) of
the PDA.
In argument Ms Anderson, appearing
for the Applicant, submitted that the disclosure was made in terms
of section 1(i) (b) of the
PDA and she submitted that every employee
has a legal obligation not to compete with his or her employer, not
to act contrary
to the interests of the employer and not to earn
additional income without permission. The evidence before me does
not support
this argument and I am not convinced that the Applicant
made a disclosure of information regarding conduct as contemplated
in
section 1(i) (b) of the PDA.
I have considered whether the letter
dated 9 September 2008 amounts to a disclosure and whether the
Applicant successfully crossed
the first hurdle to show that he
indeed made a disclosure. I came to the conclusion that the
disclosure made by the Applicant
is not a disclosure as defined in
section 1 of the PDA. In my view this should be the end of the
enquiry and whether the disclosure
was protected or not, becomes an
irrelevant question.
For the sake of completeness and if I
am wrong that this should be the end of the enquiry, the remainder
of the four-staged process
will be considered.
2.
Is the disclosure protected?
Section 1 (ix) of the PDA defines a
protected disclosure as a disclosure made to:
(a)
a legal adviser in accordance with section
5;
(b)
an employer in accordance with section
6;
(c)
a member of Cabinet or of the Executive Council of a province in
accordance with section
7;
(d)
a person or body in accordance with section
8; or
(e)
any other person or body in accordance with section
9,
but does not include a disclosure-
(i) in respect of which the
employee
concerned commits an
offence by making that
disclosure
; or
(ii)
made
by a legal adviser to whom the information concerned was disclosed in
the course of obtaining legal advice in accordance with
section
5;
In his statement of case the
Applicant stated that he disclosed ‘corrupt and fraudulent
activities’ at the UJ and
that the disclosure pertained to
misuse of UJ property and mismanagement of funds and the disclosure
was made to Professor Morgan
as the Executive Director of Human
Resources and the appropriate person in accordance with the
Respondent’s whistle blower
policy to whom such disclosure was
to be made.
Section 6 of the PDA protects
employees who make protected disclosures to their employers and
relevant to the Applicant’s
case is subsection (1) that reads
as follows:
'Any
disclosure made in good faith -
and
substantially in accordance with any procedure prescribed, or
authorised by the employee's employer for reporting or otherwise
remedying the impropriety concerned; or
to
the employer of the employee, where there is no procedure as
contemplated in paragraph (a).
is
a protected disclosure.’
If a disclosure is made to an
employer in terms of section 6 of the PDA, a number of conditions
must be satisfied before that
disclosure can be protected. The
person claiming the protection must be an employee. The employee
must have reason to believe
that information in his or her
possession shows, or tends to show, the range of conduct that forms
the basis of the definition
of 'disclosure'. The employee must make
the disclosure in good faith. If there is a prescribed procedure or
a procedure authorized
by the employer for reporting or remedying
any impropriety, then there must be substantial compliance with that
procedure. If
there is no procedure that is either prescribed or
authorized, then the disclosure must be made to the employer.
Finally, there
ought to be some nexus between the disclosure and the
detriment.
The Respondent indeed has a
whistleblower policy in place and it is the Applicant’s case
that he reported the corrupt and
fraudulent activities to Professor
Morgan in terms of the provisions of the policy. The Respondent did
not seriously dispute
this, although it was denied that any
disclosure was made at all. I accept that there was substantial
compliance with the Respondent’s
prescribed procedure.
The
disclosure has to be made in good faith too. In
Tshishonga
v Minister of Justice and Constitutional Development and another
good faith was considered and it was
held that:
‘
An
employee may reasonably believe in the truth of the disclosures and
may gain nothing from making them, but his good faith or
motive would
be questionable if the information does not disclose an impropriety
or if the disclosure
is
not aimed at remedying a wrong...
Good
faith is a finding of fact. The court has to consider all the
evidence cumulatively to decide whether there is good faith or
an
ulterior motive, or, if there are mixed motives, what the dominant
motive is.
A
whistleblower is unlikely to have 'warm feelings' about the
wrongdoing or person against whom disclosure is made. At the other
extreme a whistleblower who is overwhelmed by an ulterior motive,
that is, a motive other than to prevent or stop wrongdoing, may
not
claim the protection under the PDA. The requirement of
good
faith therefore invokes a proportionality test to determine the
dominant motive.’
It
was also held that ‘There should be reasonable steps to
investigate the matter. The employer should be given a chance
to
explain or correct the situation. The motivation for this approach
is not to cover up wrongdoing but because the internal
remedy may be
the most effective.
Genuine
engagement on the issues minimizes the risks for both parties.’
In
Communication Workers Union
v Mobile Telephone Networks (Pty) Ltd
3
it was held:
‘
However,
as I have noted, the protection extended to employees by the PDA is
not unconditional. The PDA sets the parameters of what
constitutes a
protected disclosure, as well as the manner of permissible disclosure
by workers. The definition of 'disclosure'
clearly contemplates that
it is only the disclosure of information that either discloses or
tends to disclose forms of criminal
or other misconduct that is the
subject of protection under the PDA. The disclosure must also be made
in good faith. An employee
who deliberately sets out to embarrass
or harass an employer is not likely to satisfy the requirement of
good faith.
…
.
However more extensive the rights established by the PDA might be in
the employment context, I do not consider that it was intended
to
protect what amounts to mere rumours or conjecture.’
When the Applicant was asked during
trial what he expected from the Respondent when he made the
disclosure, he responded that
he expected that someone would pay
attention to the claims he made and to be taken seriously. The
Applicant conceded that the
Saturday work issue was well known and
other employees were also not happy with the arrangement and that
Professor Pretorius
put a stop to it as soon as she took over the
Psycad. He agreed that there is nothing more Professor Pretorius
could have done,
apart from shutting down the Saturday work and that
she did early in September 2008.
The Respondent’s position is
that the Saturday work was stopped, even before the Applicant made
the disclosure and he disclosed
a well known fact after the practice
he disclosed had been put to a stop. The letter he wrote on 9
September 2008 to Professor
Morgan was not a disclosure but was
listing his complaints and at the heart of the Applicant’s
complaint is the fact that
he did not receive the same financial
benefits as the psychologists who performed Saturday work and he
could not take part in
the opportunity to earn additional income. He
was dissatisfied and disgruntled.
In
considering whether the Applicant made the disclosure regarding
Saturday work in good faith, I have to consider whether the
information disclosed an impropriety and if the disclosure
was aimed at remedying a wrong. I
already found that the information the Applicant disclosed, did not
disclose corrupt or fraudulent
activities or misuse of property or
mismanagement of funds. Was the disclosure aimed at remedying a
wrong? The evidence is that
the ‘wrong’, being the
private Saturday work, was stopped even before the Applicant made
the disclosure on 9 September
2008. The Respondent had to be granted
an opportunity to correct the situation and the Respondent did that.
The Applicant’s motive was not
to remedy a wrong. He conceded that the Saturday work practice was
stopped before his letter
of 9 September 2008 and he expected
nothing more from Professor Pretorius, but to stop the practice.
I am not convinced that the
disclosure was made in good faith. The Applicant had an ulterior
motive in making the disclosure and
he was motivated by his own
unhappiness regarding the fact that others earned an additional
income on Saturdays at the UJ premises
and he was not part of that
as he called it: ‘roaring Saturday private practice….that
generated huge income for
them...’
The purpose of the disclosure was
neither to bring the Saturday work to the Respondent’s
attention nor to put a stop to
it, as the evidence was that the
Saturday work was a well known fact, the psychologists involved in
it had the UJ’s permission,
many employees complained about it
and it was stopped by professor Pretorius early in September 2008.
3.
Was the Applicant subjected to
any occupational detriment?
The Applicant’s case is that a
disciplinary process was initiated and charges of misconduct were
levelled against him after
he made the disclosure. He was found
guilty and dismissed and this is the occupational detriment he was
subjected to.
The question is whether there exists
any nexus between the disclosure made on 9 September 2008 and the
disciplinary action instituted
in January 2009.
In
Sekgobela v State
Information Technology Agency (Pty) Ltd
4
the Court considered the question
whether the disclosure made by the applicant was the reason for his
dismissal and held that:
As
already pointed out, a dismissal will only be automatically unfair if
the reason is one of those listed in s 187(1)
(a)
-
(h)
of the Labour Relations Act
5
.
(LRA) Where an employee thus alleges that his dismissal is
automatically unfair, the sole enquiry would be to establish the true
reason for the dismissal and once that has been established whether
or not the reason is one of those identified in s 187(1)
(a)
-
(h)
of the LRA see in general
Janda
v First National Bank
6
.
In
the present matter the applicant testified that his dismissal
for misconduct was not the true reason for his dismissal,
but that it
was only a pretext for his dismissal and that the real or true reason
for his dismissal was the fact that he had made
a protected
disclosure. The employer in this case alleged (although no evidence
was led to substantiate this allegation)
that
the applicant was dismissed for misconduct. Who must establish the
reason for the dismissal? Is there an 'onus' on the employee
to
establish the reason for his dismissal? This question was pertinently
dealt with in the
Janda’s
case mentioned above. In terms of s
192(1) and (2) of the LRA the onus to prove the existence of a
dismissal rests on the employee.
Once the employee has discharged
this onus, the employer bears the onus to prove that the dismissal
was fair (and in this context
for a permissible reason). This means
that it is for the employer to prove that the employee was dismissed
for a permissible reason
and that the dismissal was effected in
accordance
with a fair
procedure. Because this is an onus placed on the employer by the Act
it is an onus in the true sense and will remain
on the employer
throughout the course of the trial (see
Janda
at para 13). The mere fact that an
employee alleges that he or she was dismissed for an impermissible
reason does not detract from
the fact that the
onus
to prove the fairness of the dismissal remains on the employer. It
is, however, not sufficient for the employee simply to allege
that he
or she was dismissed for an impermissible reason and therefore
entitled to the consequences of a finding of automatically
unfair
dismissal. In other words, the mere
allegation of automatically unfair dismissal (in the sense that the
dismissal was for an unfair
reason) is not sufficient to allow this
court to come to the conclusion that the dismissal falls squarely
within the confines of
s 187(1) of the LRA.
In
Kroukam v SA Airlink (Pty)
Ltd
7
, the Labour Appeal Court confirmed
that s 187 places an 'evidentiary burden upon the employee to produce
evidence which is sufficient
to raise a credible possibility that an
automatically unfair dismissal has taken place. It then behoves the
employer to prove to
the contrary, that is to produce evidence to
show that the reason for the dismissal did not fall
within
the circumstance envisaged in s 187 for constituting an automatically
unfair dismissal'.
In
Janda
8
above, the court explained that:
'As
stated earlier, there is a single issue with the burden on the
employer. This essential point is obscured if one speaks of ''the
employer must prove” or a ''shifting” of the onus or a
duty ''to establish a prima facie case that the reason for dismissal
was an automatically unfair one”....The evidentiary burden
placed upon an employee creates the need for there to be sufficient
evidence to cast doubt on the reason for the dismissal put forward by
the employer, or to put it differently, to show that there
is a more
likely reason than that of the employer. A failure to present such
evidence creates the risk of the employee losing his
or her case. The
essential question however remains, after the court has heard all the
evidence, whether the employee upon whom
the onus rests of proving
the issue, has discharged it.'
Did the Applicant in this matter
present sufficient evidence to this Court to cast doubt on the
reason for the dismissal put forward
by the employer? And, was the
disclosure made by the applicant the principal or dominant reason
for the disciplinary action,
which resulted in the applicant's
dismissal? These are pertinent questions.
I will now briefly turn to the
evidence that was placed before the Court in respect of the reason
why the Applicant was dismissed.
At the outset it should be pointed
out that the Applicant conceded that his dismissal was procedurally
fair.
There were four charges of misconduct
levelled against the Applicant. Charge one related to fraud and
misrepresentation and or
gross dishonesty in that the Applicant
misrepresented to the TWR that he was duly registered with the HPCSA
as a psychologist
when he was not so registered. As a result of the
misrepresentation he was appointed by the TWR on 1 July 2004 and by
the UJ
on 1 January 2005 and he performed work as a health
professional unlawfully and in contravention of the Health
Professions Act
56 of 1974. Rendering a professional health service
during the period 1 July 2004 and 15 April 2005 constituted a
criminal offence
and exposed the Respondent.
Further the Applicant was charged for
misrepresenting to Ms Le Roux, verbally on 24 November 2008 and in
writing on 26 November
2008 that he was registered with the HPCSA as
a counselling psychologist under registration number PS00531981,
whereas he was
not so registered.
The Applicant conceded that he
misrepresented that he was registered with the HPCSA when he was not
so registered. This is very
serious as it constituted a
contravention of the Health Professions Act to practice as a
psychologist without being registered.
In argument Ms Anderson submitted
that the Applicant was not notified that his name was removed from
the register and therefore
the removal of his name was unlawful and
void. For these reasons the Respondent could not have instituted
disciplinary action
related to the misrepresentation he made when he
was appointed. She further submitted that the concession that the
Applicant
made during cross-examination that he was not registered,
was a concession to a proposition that is not legally sustainable
and
is of no consequence. His concession cannot change the fact that
his removal from the register was not lawful.
This argument cannot be sustained.
The Applicant testified in his evidence in chief that his
professional registration with the
HPCSA lapsed at the time when he
applied for the position at the Respondent in 2004 and he testified
that he acted as an unregistered
psychologist. These were not
concessions he only made in cross-examination, but were his
statements when he presented his own
case. He confirmed the position
in cross-examination when he conceded that he provided psychological
services without being registered
and that he was committing a
criminal offence in doing so. The Applicant never disputed the
lawfulness of the removal of his
name from the HPCSA register and it
was certainly not his case that it was void and that he could not
have been charged accordingly.
The submissions made by Ms Anderson
are simply not supported by the Applicant’s evidence or the
case as it was presented
in Court.
In respect of the misrepresentation
made to Ms Le Roux on 24 November 2008, he tendered a written
apology wherein he explained
that he explained that he has a hearing
impairment and did not hear Ms Le Roux properly when she posed the
question to him regarding
the categories he was registered as a
psychologist. This explanation has been rejected by Ms Le Roux who
testified that they
were in a small office, the Applicant heard her
very well and she never posed a question to him but the Applicant
tendered the
information regarding the categories he was registered
with the HPCSA. Ms Le Roux explained that part of her responsibility
is
to do individual career development for the employees in Psycad
and in that capacity she had an interview with the Applicant around
24 November 2008. He was dissatisfied with the fact that promotion
opportunities were limited and she suggested that he became
a
supervisor to interns psychologists. Her testimony was that the
Applicant was interested and volunteered the information that
he was
indeed registered in two categories.
Ms Le Roux subsequently sent an
electronic mail to all the psychologists who were interested to
become supervisors to provide
her with their professional
registration numbers with the HPCSA in order for her to finalise the
process and letters to the prospective
interns. On 26 November 2008
the Applicant responded to Ms Le Roux’s request and he sent
her an electronic mail indicating
that he was registered as an
educational and counselling psychologist with the HPCSA and he
provided his registration numbers.
Ms Le Roux testified that this
electronic mail with the two categories and registration numbers was
a confirmation of what the
Applicant told her verbally on 24
November 2008.
The Applicant thereafter tendered an
explanation on 28 November 2008 and he explained the reason why he
provided two registration
numbers to Ms Le Roux as follows: he
‘
wrongfully thought that the themes would only be discussed
with the educational interns and included the registration number of
the counselling because I thought that both groups would have
benefited
from this and the fact that I completed the theory
on counselling it would have enabled me to discuss the themes with
both groups
and that I am adequate to present same to both
groups...’
Before this Court the Applicant
presented another explanation. He testified that he was busy with a
client when he heard the sound
indicating that he received an
electronic mail. Whilst consulting with the client, he turned to his
computer, opened the electronic
mail from Ms Le Roux and within four
minutes after he received it, he responded to Ms Le Roux and
provided her with the two registration
numbers. It was a mistake and
he should have indicated that he was only registered as an intern
counselling psychologist. Professor
Pretorius testified that it
would be the most unethical and unprofessional conduct if a
psychologist would, during a session
with a client, interrupt the
session to attend to an electronic mail. Professor Pretorius was of
the view that this never happened
the way the Applicant explained
and it was put to him that the explanation is highly improbable.
There are two explanations tendered
by the Applicant for why he included two registration numbers in two
categories in his response
to Ms Le Roux. The first explanation is
tendered two days after he provided Ms Le Roux with the numbers and
he explained that
he included the number of the counselling as he
thought the themes he submitted could have been presented to both
groups of interns.
The second explanation he tendered in Court and
that was that he was busy with a client and quickly responded to Ms
Le Roux’s
request and that he made a mistake.
Ms Le Roux explained that the written
submission of the registration numbers on 26 November 2008 was a
confirmation of what the
Applicant told her on 24 November 2008.
On 28 November 2008 the Applicant
tendered an explanation on why he included both numbers and made no
mention of the client he
was seeing and the fact that he responded
in four minutes. He tried to explain the reason why he included two
registration numbers
yet in Court he presented a different version
and wanted to convince the Court that he was in a hurry and merely
made a mistake.
I cannot accept the Applicant’s explanation as
tendered during trial.
Charge 2 was the wilful refusal to
comply with and or open defiance of the University systems
pertaining to electronic diary management
and or the Applicant’s
failure to devote his full time and attention to the duties and
responsibilities in that he made
frivolous entries into his
electronic diary, which is publically shared. The entries referred
to ‘30 minute loo breaks’
twice a day, meetings with
‘snow white, the seven dwarfs, super women and the tooth
fairy’. The conduct was regarded
as inappropriate, unbecoming
of a professional in the Applicant’s position and made a
mockery of the professional integrity
of the Respondent.
Dr Mkhatswa and Professor Pretorius
testified in respect of the entries made in the electronic diary. It
was the Respondent’s
evidence that there has been a history
and background to diary management and entries as some employees
made fake entries into
their diaries to ensure that their workload
was kept to the minimum. This was a general complaint and even the
Applicant complained
about it. An electronic diary management system
was introduced and it was accessible internally to ensure that work
was equally
distributed amongst the available psychologists and that
consultations could be scheduled on any of the campuses. The
Applicant
made fictitious entries into his diary and he defiantly
challenged the diary management system. Professor Pretorius
testified
that if a senior person such as the Applicant made
frivolous and fictitious entries in the diary as he did, it made a
mockery
of the system and of how psychologists should be available
to render services.
The Applicant testified that he
intended the diary entries to be humoristic and it was no reflection
of the work he was doing.
Under cross-examination he conceded that
the entries were not acceptable, but maintained that it was not
necessary to take disciplinary
action against him for that.
Charge 3 was gross insolence and or
disrespect for seniors in that the Applicant addressed an electronic
mail, copied to other
professional staff, to Dr Thomas Mkhatshwa in
which he stated that there was no senior professional person with
management and
executive skills on campus. This electronic mail
undermined Dr Mkhatshwa’s authority and improperly interfered
with his
management responsibilities and duties.
The Applicant testified that the
electronic mail did not refer to Dr Mkhatshwa specifically and that
Dr Mkhatshwa was too sensitive
in taking the contents of the
electronic mail so personally. He testified that he was referring to
the campus where he was based
and he meant that it would have been
ideal if there could have been a full time senior manager based on
that campus. The Applicant
denied that he criticised Dr Mkhatshwa
and stated that it was written with the best intentions.
Professor Pretorius testified that
the electronic mail was an insult addressed at all senior managers,
it was a challenge to management,
it undermined authority and
created disharmony. She further testified that the Applicant was
disgruntled and according to him
everybody was incompetent, the tone
of his communication was never accommodating, his relationships with
others were strained
and he battled to adapt to the changes
associated with the merger. Dr Mkhatswa testified that the
electronic mail from the Applicant
offended, undermined and insulted
him. The Applicant insinuated that there were no senior people with
management skills, whilst
he was the senior manager, and he was
spreading disharmony and disunity.
Charge 4 was withdrawn and is thus
not relevant.
The Applicant was found guilty of
misrepresentation and gross dishonesty as per charge 1 and guilty on
charges 2 and 3. Dismissal
was recommended as an appropriate
sanction.
The Applicant’s case is that
the Respondent wanted to get rid of him after he made the
disclosure. Ms Anderson argued that
the Applicant was not liked, he
caused disharmony, Ms Le Roux was unhappy about losing her Saturday
work and the Respondent wanted
him to leave and was happy to find
something to charge him with. The Respondent wanted to dismiss the
Applicant at all costs
because of the disharmony he caused.
These allegations were denied by
Professor Pretorius and Ms Le Roux. The testimony was that the
Respondent intended to appoint
the Applicant as a supervisor to an
intern for a period of twelve months, commencing in 2009, the UJ
wanted to involve the Applicant
in additional training and he was
part of the future planning of the Psycad unit. Mr Lennox submitted
that the Applicant, alleging
that everyone was out to get him and to
dismiss him, was unable to name one person who was so out to get
him. He argued that
there was no connection between the charges of
misconduct and the disclosure the Applicant made.
All three the Respondent’s
witnesses denied any link between the disclosure the Applicant made
and the disciplinary action
taken.
In cross-examination the Applicant
conceded that he has not adduced any evidence to link his
disciplinary charges to the disclosure
he made.
Did the Applicant in this matter
presented sufficient evidence to this Court to cast doubt on the
reason for the dismissal put
forward by the employer? In my view the
Applicant failed in that respect and he has not discharged the
evidentiary burden to
show that the reason for his dismissal as put
forward by the Respondent is in fact not the real reason. His
version that the
Respondent wanted to get rid of him and badly so,
is not supported by the evidence. I am not convinced that the
Respondent dismissed
the Applicant for any other reason than the
charges of misconduct he was found guilty of.
Was the disclosure made by the
applicant the principal or dominant reason for the disciplinary
action, which resulted in the applicant's
dismissal? In my view the
Applicant failed to show any nexus between the disclosure he made
regarding Saturday work and the disciplinary
action taken against
him.
Accordingly I find that the dismissal
of the Applicant was not automatically unfair as contemplated in
section 187(1) (h) of the
LRA.
In the alternative it is the
Applicant’s case that he was substantively unfairly dismissed
as contemplated by section 188(1)(a)
of the LRA and the parties
agreed that in the event the Applicant failed to show that his
dismissal was automatically unfair,
the Court would adjudicate the
alternative claim in terms of section 158(2).
The Respondent showed that the
misconduct the Applicant was found guilty of was of a very serious
nature, it impacted on the trust
relationship so negatively that a
continued employment relationship was not possible. The Applicant
conceded that he made a misrepresentation
to the Respondent when he
was not registered with the HPCSA. This is very serious and the
implications of this conduct are severe.
I am of the view that in light of the
evidence adduced by the parties and the concessions made by the
Applicant, the dismissal
was justified and an appropriate sanction.
I therefore find that the Applicant’s
dismissal was fair.
Costs
Ms Anderson argued that costs should
be considered against the provisions of section 162 of the LRA and
according to the requirements
of the law and fairness. She submitted
that the Respondent had a drive to get rid of the Applicant, had an
ulterior motive and
that influenced the objectivity of the
disciplinary proceedings. The Applicant had all reason to feel
unfairly treated and to
refer a dispute as he did. At the time the
Applicant referred his dispute, he was unaware of the facts as they
were testified
during the trial. The Applicant had to have access to
justice and he should not be penalised with a costs order. She
submitted
that each party should be ordered to pay its own costs, as
this is a case where fairness dictates that no costs order should be
made against the losing party.
Mr Lennox for the Respondent argued
that the Applicant’s case is without any merit, it is
frivolous, vexatious and he has
not approached this Court in good
faith. The Applicant conceded that he was guilty of
misrepresentation and he conceded to committing
a criminal act and
exposing the Respondent and its clients. The Court’s doors
should be closed to litigants who approach
the Court without merits.
The Applicant was a contradicting witness who blamed everyone else
for his own conduct and referring
this matter to Court is a gross
abuse of process. It would be just and equitable if the Applicant is
to be ordered to pay the
costs.
Ms Anderson referred to a number of
well know authorities on costs. The general accepted purpose of
awarding costs is to indemnify
the successful litigant for the
expense he or she has been put through by having been unjustly
compelled to initiate or defend
litigation. In considering whether
costs should be awarded, the requirements of law and fairness become
applicable.
The requirement of law has been
interpreted to mean that the costs would follow the result.
In
considering fairness, the Court has held that the conduct of the
parties should be taken into account and that
mala
fide
, unreasonableness and
frivolousness are factors justifying the imposition of a costs
order. Another factor to be considered is
whether there is an
ongoing relationship that would survive after the dispute had been
resolved by the Court. If so, a costs
order may damage the ongoing
relationship. In my view fairness would include fairness to both
parties.
In
Wanless v Fidelity (Pty)
Ltd
9
the employee also referred an
automatically unfair dismissal dispute and the Court, in considering
whether to impose a costs order
on the applicant, noted that it had
to discourage ill-conceived litigation, especially where the
applicant had failed to establish
even a factual basis for her
claim.
In
Wallis v Thorpe &
another
10
the Court held:
‘
In
relation to costs, this court has a discretion in terms of s 162 to
make an order for costs according to the requirements of
the law and
fairness. The ordinary rule, ie that costs follow the result, is a
factor to be taken into account, but it is not a
determinative
factor. Mr.
Rossouw
submitted
that costs should be awarded on a punitive scale, since the
litigation initiated by the applicant was nothing less than
frivolous. While there is some merit to Mr
Rossouw's
submission
having regard particularly to the casual and careless attitude with
which the applicant has conducted these proceedings
since their
inception, I intend to make an order for costs only on the ordinary
scale. This litigation was ill-considered from
the start.,,.’
…
.
.
Ultimately, the applicant is the author of his own misfortune. This
court encounters many indigent and illiterate litigants who
seek to
enforce what they perceive to be their rights. The court is often
wary of the effect of a costs order on persons such as
these, who
more often than not sincerely but misguidedly institute ill-conceived
proceedings. The applicant in these proceedings
is neither indigent,
nor is he illiterate. On the contrary, he is an articulate,
experienced business person, who was quite capable
of considering the
consequences of his decision …..”
The Applicant instituted proceedings
against the Respondent because he made a protected disclosure and
was dismissed as a result
of the disclosure he so made. This was the
case the Respondent had to answer. Yet in Court the Applicant
conceded a serious charge
of misconduct he was found guilty of and
dismissed for, he conceded a criminal act, he led no evidence to
substantiate his allegation
that he disclosed fraudulent and corrupt
activities and his testimony did not indicate any nexus between the
disclosure and the
disciplinary action. He did not establish any
factual basis for his claim for automatic unfair dismissal and he
did not even
cross the very first hurdle to show that the
information he disclosed could be regarded as a disclosure for
purposes of the PDA.
The Applicant is a very well educated
individual who holds a number of tertiary degrees and who has wide
experience. He is more
than capable to consider and understand the
consequences of instituting litigation in a court of law and the
risk of losing and
paying costs.
The Respondent had to defend a case
of which the merits were doubtful from the onset and fairness
dictates that the Respondent
cannot be expected to endure enormous
costs defending litigation that ought not to have been brought in
the first place.
I further consider the fact that
there is no ongoing relationship between the parties.
In the premises I make the following
order:
Order
The Applicant’s case is
dismissed with costs.
Cost to be paid on a party and party
scale.
______________
Prinsloo, AJ
Acting Judge of the Labour Court
Appearances:
For the Applicant: Ms Riki Anderson
Of Riki Anderson Attorneys
For the Respondent: Adv. Lennox
Instructed by Mahons Attorneys
1
26
of 2000.
2
[
2007]
(4) SA 135
(LC);[2007] 28 ILJ 195 (LC) at para 176.
3
[
2003]
24 ILJ 1670 (LC) at para 21.
4
(2008)
29 ILJ 1995 (LC).
5
66
of 1995.
6
[2006]
27 ILJ 2627 (LC) at para 10.
7
[2005]
26 ILJ 2153 (LAC) at para 28
8
Id
at para 18
9
[
2008]
29 ILJ 2030 (LC).
10
[2010]
31 ILJ 1254 (LC).