About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2014
>>
[2014] ZALCCT 16
|
|
Beaurain v Martin NO and Others (C16/2012) [2014] ZALCCT 16; (2014) 35 ILJ 2443 (LC) (16 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
CASE
NO: C 16/2012
In
the matter between:
JOHANNES IZAK
BEAURAIN
Applicant
and
LESLIE MARTIN N.O.
First Respondent
PUBLIC HEALTH AND
SOCIAL DEVELOPMENT SECTORAL BARGAINING COUNCIL
Second Respondent
DEPARTMENT OF
HEALTH, WESTERN CAPE
Third Respondent
MEC FOR THE DEPT OF
HEALTH, WESTERN CAPE
Fourth Respondent
Heard
:
10-14 March 2014
Delivered
:
16 April 2014
Summary:
Protected Disclosures Act 26 of 2000
– whether publication on
Facebook is a protected disclosure – claim for automatically
unfair dismissal in terms of
s 187(1)(h)
of LRA.
JUDGMENT
STEENKAMP J
Introduction
“
Fair
is foul and foul is fair
Hover
through the fog and filthy air.”
[1]
[1]
This is a case about allegations of filthy
air emanating from the foul toilets and circulating through the air
conditioning of Groote
Schuur Hospital. It is also a case about
whether the applicant’s dismissal was fair or foul.
[2]
The
applicant, Mr Johan Beaurain, worked at Groote Schuur Hospital.
[2]
He published photographs and complaints on Facebook about the state
of the toilets at the hospital, as well as allegations that
the
health of patients and staff was being compromised, because dirty air
was being sucked up and distributed through the hospital
via the air
conditioning system. He was told to stop. He did not. He was
dismissed. He says that his disclosures were protected
in terms of
the
Protected Disclosures Act
[3
]
and that his resultant dismissal was automatically unfair in terms of
s 187(1)(f) of the Labour Relations Act.
[4]
In other words, he claims to be a whistleblower. The Department of
Health and its MEC
[5]
say that
the publications did not constitute a protected disclosure, and in
publishing them the applicant was in breach of his
duty to the
employer, as well as of a number of express workplace rules. As
the applicant’s refusal to heed the instruction
was persistent
and deliberate, he was guilty of gross insubordination. This
warranted his dismissal.
Background
facts
[3]
The applicant was employed at GSH by the
Department as an electrician in 2006. He worked in the Engineers
Department. In 2007 he
wrote to the doctor in charge of staff health,
Dr Helga Antonissen, raising a concern about the inter-floor area (a
mezzanine level
not used for theatres or the public) above level C16
of the hospital. He described it as follows:
“
I
had to inhale extremely filthy air that in my opinion consisted of
the dust that was never cleaned or vacuumed for months as well
as the
fumes emanating from the dried-out remnants of a sewerage spillage in
the area”.
He
claimed that, as a result, he suffered from a number of systems
during the next week, including a severe headache, congested
and
painful lungs, swollen glands, fever, indigestion and diarrhoea. He
also went to see her and further complained about weight
loss.
[4]
Dr Antonissen held a different medical
opinion. She inspected the area in question together with the
occupational health nurse and
the safety officer. They did not notice
excessive dust or any sewerage spillage. Her opinion was that the
most likely condition
for the applicant’s condition was a viral
respiratory infection. She advised sending away two sputum specimens
to exclude
TB, in view of the weight loss. She was of the opinion
that the interfloor area did not pose a health hazard.
[5]
In April 2009 the applicant wrote to Dr
Antonissen again. Amongst other things, he raised the following
complaint:
“
In
the interfloors are toilets that do not seem to be part of a cleaning
schedule similar to the other toilets in the hospital.
These toilets
are also dysfunctional and do not flush properly. Despite that, some
contractors and staff members working in the
interfloors seem to use
these toilets from time to time. This then results in a situation
where toilets are blocked up with dried
out human excreta.
The
air conditioning system then sucks the rotten air that hangs around
this toilet up into the air conditioning system and feeds
it into the
‘fresh’ air to be supplied in the wards and other areas
where sick people are lying or waiting to be attended
to. The staff
working in the hospital also get their fair share of this precious
“fresh air”.
In
certain areas of the hospital staff are working with dangerous
chemicals. I’m thinking for example about cleaning chemicals,
those used in the development of photographs, those used in
laboratories etc. The toxic air (gases) that escape from these
processes
are often recycled through the rest of the hospital before
it escapes into the sky to contaminate the rest of Cape Town.”
[6]
The applicant also complained about a
number of other issues, including a claim that cellular phone
equipment installed on the hospital
premises and cellphones carried
by staff and visitors “are also radiating harmful frequencies
that reduces the strength of
patients and staff. These should be
neutralised and staff should be developed to identify, rectify and
constantly monitor to ensure
safe conditions around the beds of our
patients.”
[7]
In the period from April to June 2009 the
applicant posted a number of documents and photographs on Facebook.
Apart from copies
of his internal correspondence with hospital staff,
including Dr Antonissen, he included photographs of the toilets in
the inter-floor
areas under the heading, “Vrotspul in Groote
Schuur Hospitaal”.
[8]
On 5 June 2009 Dr Antonissen wrote to the
applicant again. She said:
“
The
GSH Occupational Health and Safety Committee held a workshop on 22
May 2009, at which the concerns raised in your letter were
discussed.
Some,
but not all, of these concerns are valid, and have been addressed
previously.
A
few points to note are:
1.
The
unsanitary conditions in some hospital bathrooms/toilets. This is an
EHS
[6]
function and should be
addressed with that department again.
2.
Poor condition of the engineering
workshops. Many visits have been done to this area, and
recommendations made, but little progress
has been made. This is a
managerial issue with financial implications.
3.
Poisonous pesticides in kitchens.
Pyrethroids are used in gel form, not powder. This does not pose a
danger to staff working in
the areas.
4.
Drinking water has been tested on several
occasions, and is safe to drink.
5.
Regular annual or two yearly medical
examinations performed on staff who work in identified risk areas.
These examinations include
appropriate blood tests and x-rays.
6.
Maintenance
checklists should be obtained from your HOD
[7]
,
Mr Scott. If maintenance is not carried out, raise the matter with
him.
If
you have any other health and safety concerns it would be a good idea
to put them in writing and address them to the Occupational
Health &
Safety Exco, c/o Ms Beth Adams, G45, OMB. We have regular meetings
with problems are discussed.”
[9]
On 12 June 2009 Mr Harold Scott, the head
of the engineering department, sent the applicant a letter in the
following terms:
“
Bringing
the name of Groote Schuur Hospital into disrepute
I have received
information in the format of emails, photos and Facebook literature
pertaining to health risks that you have accumulated
and exposed
trying to bring Groote Schuur Hospital into disrepute.
Please stop these actions
immediately.
You are hereby also
informed that an investigation will be launched regarding your acts
of misconduct of a serious nature with respect
to these negative and
derogative [
sic
] comments you have published on Facebook.”
[10]
The applicant continued to post comments on
Facebook. On 7 August 2009 Mr Scott addressed a further letter to him
in the following
terms:
“
FAILURE
TO ADHERE TO A LAWFUL INSTRUCTION GIVEN BY YOUR SUPERVISOR
This matter has reference
to a letter dated 12 June 2009.
You have previously been
warned to refrain from publishing information on email, photos and
Facebook literature pertaining to a
letter to health risks. The said
allegations are currently being investigated.
You have ignored the
previous written instructions, when you continued to publish
literature pertaining to allegations of health
risks at Groote Schuur
Hospital on Facebook and also having made arrangements to speak to a
journalist while such allegations is
[
sic
] being investigated.
You are therefore given a
final instruction to stop with immediate effect all kind of
communication, which include all forms of
electronic publications of
information with regard to your allegations, and if you continue with
these publications your actions
will be viewed as gross
insubordination.”
[11]
The applicant continued with his Facebook
posts. For example, on 10 October 2009, he posted:
“
The
management of Groote Schuur Hospital are currently in the process of
locking the doors of the filthy toilets in the service
areas of the
hospital. The locked toilets will then be inaccessible to most
people. But the majority of these toilets are still
very filthy. Most
of these toilets are still in such a terrible state of disrepair that
it is impossible to flush the waste away.
These filthy toilets are
causing foul air to enter the air conditioning system and be pumped
into the hospital wards. I took the
pictures of the toilets in this
album on Friday, 9 October 2009.
The management of Groote
Schuur Hospital do not succeed in seeing to it that the engineering
department at the hospital fix these
15 toilets that are locked up
and hidden away in the services areas of the hospital. I suspect that
most of the managers at GSH
just do not care.”
[12]
On 16 February 2010 the applicant was
notified of a disciplinary hearing to be held on 25 February 2010..
The charge was described
as:
“
Gross
insubordination in that you failed to adhere to a lawful instruction
issued to you in letters dated 12 June 2009 and 6 August
2009 that
you stop with immediate effect all kinds of communication with
regards to the allegations you made and refrain from publishing
such
information.”
[13]
The chairperson of the disciplinary hearing
found that the applicant had committed the misconduct complained of
and dismissed him
with immediate effect on 12 May 2010 in terms of
clause 7.4(vii) of the disciplinary code and procedure for the Public
Service.
The applicant appealed unsuccessfully. He referred a dispute
about the fairness of his dismissal to the Public Health and Social
Development Sectoral Bargaining Council where conciliation was
unsuccessful. He then referred the current claim to this court.
[14
]
In
the interim, but unbeknownst to the applicant, the hospital had
implemented a comprehensive programme with the unfortunate acronym
of
SEAT
[8]
. The objective of the
programme was “to evaluate the process of repair, maintenance,
as well as management of the ablution
facilities in the New Main
Building, Groote Schuur Hospital.”
[15]
The first SEAT meeting was held on 16 July
2009. A representative of the engineering department explained
problems relating to the
cost of maintaining toilets and ongoing
vandalism and theft in toilets. Systems were put in place to ensure
that toilets were cleaned
regularly and to prevent vandalism.
Unfortunately, none of this was conveyed to the applicant.
Evaluation / Analysis
[16]
The applicant claims that his dismissal was
automatically unfair in terms of section 187(1)(h) of the LRA because
the reason for
the dismissal was –
“
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.”
[17]
This court has to decide, therefore,
whether the employee did make a protected disclosure as defined in
the PDA.
The
applicable legal principles
[18]
The
PDA defines a “disclosure” as 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
information concerned shows or tends to show, into alia,
that the
health or safety of an individual has been, is being or is likely to
be endangered.
[9]
The objects of
the Act
[10]
are –
“
(a)
to protect an employee, whether in the private or the public sector,
from being subjected to an occupational detriment on account
of
having made a protected disclosure;
(b) to provide for
certain remedies in connection with any occupational detriment
suffered on account of having made a protected
disclosure; and
(c) to provide for
procedures in terms of which an employee can, in a responsible
manner, disclose information regarding improprieties
by his or her
employer.”
And an
“impropriety” means any conduct which falls within any of
the categories referred to in the definition of “disclosure”.
[11]
Not
a case for the
Protected Disclosures Act?
[19
]
Ms
Harvey
,
for the Department, argued that this is not a case that falls under
the
Protected Disclosures Act. The
purpose of the Act is to
facilitate disclosure of information by employees relating to
criminal
and other irregular conduct
in the workplace in
a
responsible manner
by providing comprehensive statutory guidelines for the disclosure of
information and protection against any reprisals as a result
of
disclosures.
[12]
[20]
Ms
Harvey
argued that this is not a case falling under the Act because:
20.1
The allegations were not of an
‘impropriety’: the applicant’s belief about health
risks was unreasonable, and
his complaint about quality management
does not amount to an impropriety;
20.2
The publications did not amount to a
‘disclosure’ as the information was notorious;
20.3
The applicant did not follow the statutory
procedures, and was not in good faith;
20.4
The disclosure did not meet the conditions
prescribed in
section 9(2)
; and
0.49
in; margin-bottom: 0.35in; line-height: 150%">
20.5
It was not reasonable in all the
circumstances to publish the information on the internet.
Was
there a disclosure of an impropriety?
[21]
To
qualify as a disclosure, the applicant must have
reasonably
believed
that the information disclosed showed an
impropriety
– in this case, that health or safety was being endangered.
[13]
[22]
The applicant had two broad concerns.
Firstly, he had a concern about
health
:
he believed that the unsanitary conditions in the toilets endangered
health, and that filthy air and toxic fumes from chemicals
used to
deep clean toilets were blown over patients in the hospital.
Secondly, he had a concern about
quality
management
: he wanted the toilets
unlocked, fixed, cleaned, and thereafter properly maintained.
The
health concern
[23]
There is no doubt in my mind that the applicant’s belief that
the unsanitary conditions in the toilets endangered health
was
bona
fide.
He struck me as an honest witness
who believed passionately that his concerns were valid. He sincerely
believed that the health
of patients and staff at the hospital was
being endangered. But was that a
reasonable
belief? On both occasions when he raised his concern Dr Antonissen
took him seriously, investigated, and gave him a comprehensive
reply.
What is difficult to understand, is why Dr Antonissen or another
representative of the hospital did not make the applicant
aware of
the comprehensive SEAT programme that had been undertaking to
address some of the very concerns that he had raised.
Nevertheless,
his persistent refusal to accept her replies cannot be said to have
been rational or reasonable.
[24]
In
Tshishonga
v Minister of Justice and Constitutional Development and another
[14]
it
was held that ‘whether a belief is reasonable is a finding of
fact based on what is believed. Thus, if the employer
clearly
has no obligation, the employee’s belief that he does cannot be
reasonable’.
[15]
See
also
Xakaza
v Ekurhuleni Metro Municipality and Others
,
[16]
where
an employee was repeatedly advised that he was factually and legally
wrong but persisted in his allegations.
[25]
In the evidence before me, Dr Antonissen
made it clear that the problems with the toilets on the inter-floor
areas – that
were not being used by patients or visitors –
did not pose any health risk. It could not lead to the spread of
bacteria through
the air-conditioning system. Dirty toilets could
pose a health risk if users physically touched them and then touched
other surfaces,
but this was not a concern that arose in this case.
The applicant’s belief, on the evidence before me, was not
reasonable.
The
quality concern
[26]
Information
that toilets are in an unsanitary state does not come within the
ambit of the Act, as Ms
Harvey
pointed out: in
Van
Alphen v Rheinmetall Denel Munition (Pty) Ltd
[17]
this
Court held that the legislature could not have intended that
complaints about the under- performance of a quality systems
department should be afforded the protection of the Act.
[18]
Notorious
information cannot be subject of ‘disclosure’
[27]
The
information, in any event, was notorious: the unpleasant situation in
the interfloor toilets was experienced by everyone on
a daily basis,
and could not be ‘disclosed’. This quality
management issue was the subject of a comprehensive
SEAT program,
which over the period 2006 – 2010 showed good results. In
Xakaza
,
[19]
a
case in which a town planner was disciplined for refusing to register
a land deal because he erroneously believed that irregularities
were
involved, the court held that the information referred to by the
employee was already known to the employer and could not
constitute a
‘disclosure’.
[20]
The
applicant did not follow the statutory procedure
[28]
An
objective of the Act is to provide for procedures in terms of which
an employee can,
in
a responsible manner
,
disclose information regarding improprieties by his or her
employer.
[21]
[29]
That
information should be disclosed in a ‘responsible manner’
balances the employer’s interest in protecting
its reputation
against the public interest in disclosure of irregularities. It
links with the repeated requirements of good
faith on the part of the
disclosing employee.
[22]
Information ought preferably to be disclosed to the employer (under
s6
of the Act), to the Minister or MEC for Health
(s7
of the Act), or
to a body which, in the ordinary course, deals with the irregularity
in question
(s8
of the Act) – in this case the Department of
Labour which administers the Occupational Health and Safety Act 85 of
1993 (OHSA).
[30]
In this case the applicant did first raise
his concerns with his employer and he did so, I believe, in good
faith. But despite the
assurances from Dr Antonissen that those
concerns that were valid, were being addressed, he continued to
publicise his allegations
to the world, on the internet. For
protection he relies on section 9 of the Act, the ‘general
protected disclosure’.
[31]
Section 9(1) provides that the disclosure
must be made in good faith by an employee who reasonably believes
that the information
disclosed, and any allegation contained in it, a
substantially true. From his evidence in this court, it is clear to
me that the
applicant did believe that his allegations were
substantially true and that the made them in good faith. But apart
from my finding
that his belief was not reasonable, section 9(2)(c)
further provides that the disclosure is only protected if the
employee had
previously made a disclosure of substantially the same
information to his employer, and the employer took no action within a
reasonable
period after the disclosure.
[32]
In this case, the applicant had no reason
to believe that evidence would be concealed: the state of the toilets
was open for all
to see and to experience. The SEAT committee
was attending to the problems that did exist. To the extent that he
believed
toilets were being locked in order to deny him access, this
belief was irrational. In fact, Sister Tracey Douglas, the
quality
assurance manager, testified that toilets were
temporarily locked in order to enable control, or when they were
receiving
chemical treatment; others were permanently decommissioned.
The applicant had not previously made a disclosure in respect of
which
‘no action’ was taken: on both occasions that he
reported his concerns to Dr Antonissen she investigated and reported
back to him, and the quality/maintenance issues were being addressed
throughout 2009.
Was
it reasonable in all the circumstances to make the disclosure ?
[33]
Publishing the allegations on the internet
was unlikely to solve the perceived problems: the health problem lay
ultimately within
the competence of the Department of Labour, and the
quality/management problems fell to be dealt with by the Department
of Health
(from Hospital management up to the MEC). It was
unnecessary to publish to the international community, who could do
little to
help.
[34]
The internet is, unlike the press, not
subject to editorial policy: there was no prospect of a moderator
contacting the Hospital
for its side of the story so that the public
be given a balanced perspective. The publication was therefore
unfair as well
as unreasonable. And, as I have set out above, the
employer had investigated and adequately responded to the health
concerns; the
quality concerns were in hand and receiving attention.
[35]
In all the circumstances, the disclosure
cannot be said to have been reasonable. Nor was it made in a
responsible manner. It does
not meet the requirements set out in
sections 2
and
9
of the
Protected Disclosures Act.
Was
the dismissal for misconduct nevertheless fair?
[36]
Given my findings with regard to the
Protected Disclosures Act, the
applicant’s dismissal cannot be
said to have been automatically unfair in terms of
section 187(1)(h)
of the LRA. It remains to consider whether his dismissal was
nevertheless unfair.
[37]
It
is not disputed that the applicant was a civil servant whose
employment was subject to express rules prohibiting publishing
information detrimental to the employer’s interests.
[23]
[38]
The applicant contravened these rules when
he:
38.1
published allegations on the internet which
brought the Hospital into disrepute - including that:
38.1.1
toilets are a health hazard;
38.1.2
Hospital management is ‘unable or
unwilling to manage things properly’;
38.1.3
various health and safety risks exist (lack
of fresh air, unsafe water, use of poisonous pesticides, unsafe
electricity, unsafe
building design);
38.1.4
HIV tests are invalid, and the Hospital is
giving AIDS patients toxic drugs;
38.2
and when he
38.2.1
gave his contact details to a journalist
who expressed interest in his allegations that HIV tests; and
38.2.2
published internal Hospital correspondence
and Hospital meeting minutes online.
[39]
The applicant was formally instructed
twice, in writing, to cease such publications, but he deliberately
and persistently refused
to obey. His conduct amounted to gross
insubordination. Having failed to show that he was dismissed
because of having
made a protected disclosure as defined in the PDA,
it is clear that is dismissal on 12 May 2010 was for a fair reason.
Conclusion
[40]
Whistleblowing should be encouraged.
Employees who risk occupational detriments by making
bona
fide
and reasonable disclosures about
irregularities at the workplace if their attempts to have the
employer address such irregularities,
fall on deaf ears, must be
protected. The scourge of corruption and the misspending of public
money can be curtailed if a culture
of whistleblowing is encouraged
and if employers, both public and private, are encouraged to take
steps at an early stage to address
such irregularities. That would
obviate the need foar more public money to be spent later on through
investigations by Chapter
9 institutions such as the Public Protector
and further litigation. But on the facts of this case, sympathetic as
the Court is
to the applicant’s concerns, I cannot find that he
did make a protected disclosure. It follows that his dismissal was
not
automatically unfair; and on the facts of this case and in the
face of the clear instructions that he willingly and deliberately
defied, he was guilty of gross insubordination. His dismissal was
fair.
[41]
With regard to costs, I take into account
that the applicant acted out of a sense of duty, albeit misplaced,
and that he genuinely
believed in his cause. He was initially
represented
pro bono
at the Court’s request, but he chose to represent himself at
trial. In law and fairness, he should not be held accountable
for the
costs of the Department.
Order
The
applicant’s claim is dismissed.
_______________________
Anton Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
In
person.
THIRD
and FOURTH RESPONDENTS:
Suzanna
Harvey
Instructed
by the State Attorney, Cape Town.
[1]
William Shakespeare,
Macbeth
Act 1
Scene 1.
[2]
I may refer to it as “GSH” or “the hospital”
in the course of the judgment.
[3]
Act 26 of 2000 (the PDA).
[4]
Act 66 of 1995 (the LRA).
[5]
The Department of Health, Western Cape is cited as the third
respondent and the Member of the Executive Council is cited as the
fourth respondent. The hospital falls under the administration of
the Department and the MEC is the executive authority. The
dispute
was initially referred to the Bargaining Council (the second
respondent) and then to this Court.
[6]
Environmental Health and Safety.
[7]
Head of Department.
[8]
“Satisfactory Environment and Toilets”.
[9]
PDA s 1(i)(d).
[10]
Section 2.
[11]
PDA s 1(iv).
[12]
Preamble
to the Act.
[13]
Section
1(i)(d) and (iv).
[14]
Tshishonga
v Minister of Justice and Constitutional Development and another
(2007) 28
ILJ
195 (LC).
[15]
Tshishonga
(above) at para 185.
[16]
Xakaza
v Ekurhuleni Metro Municipality and Others
[2013] 7
BLLR
731
(LC) at para 70.
[17]
Van
Alphen v Rheinmetall Denel Munition (Pty) Ltd
(2013) 34
ILJ
3314 (LC).
[18]
Van
Alphen
(above) at paras 36 and 39.
[19]
Xakaza
(above).
[20]
Ibid
at para 56.
[21]
Section
2(1)(c) of the Act.
[22]
Sections
6(1), 7(1), 8(1) and 9(1) of the Act.
[23]
This
was covered with him in cross-examination, and also appears
from his contract of employment at clause 3.4; Public Service
Regulations (Part I) H.5, providing that an employee may not
“irresponsibly criticise” government policy in
publication;:
Public Service Regulations (Part II) E, providing that
an employee may not release information to the public without the
necessary
authority; and the Hospital’s Media Policy clause 3,
providing that employees may not provide information or comments
about
the Hospital to the media without the permission of the CEO or
his deputy.