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[2017] ZALCJHB 68
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Ndzuta v South African Police Services and Another (JS557/12) [2017] ZALCJHB 68 (23 February 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JS557/12
In the matter between:
S
Z
NDZUTA
Applicant
and
SOUTH AFRICAN POLICE
SERVICES
First Respondent
MINISTER OF
POLICE
Second Respondent
Heard:
23 February 2016 to 4 March 2016
Delivered:
23 February 2017
Summary:
Employee alleging unfair discrimination and occupational detriments
as reasons for his dismissal
– evidence showing that employee’s
allegation unfounded and based on hearsay – employee failing to
prove that
he suffered either occupational detriment or unfair
discrimination. Evidence proving that employee unhappy to be managed
by people
less qualified than him. Employee failing to establish a
causal link between the alleged disclosure and his dismissal.
Employee’s
claim dismissed.
JUDGMENT
MAHOSI
AJ
[1]
The
applicant seeks an order to the effect that his dismissal be declared
automatically unfair on account of discrimination and
occupational
detriments for having made some protected disclosures in terms of the
Protected Disclosures Act (PDA).
[1]
[2]
This
matter was heard from the 23
rd
of February 2016 until the 4
th
of
March 2016. At the end of the trial, both parties requested to have
the record transcribed and also to submit written heads of
argument
which request was granted. The transcribed record was filed on the
28
th
of June 2016 and the parties had until the 22
nd
of July 2016 to file the heads of argument. An application for the
extension of time to file the heads of arguments was made by
both
parties and they were given until the 28
th
of August 2016. The parties failed to meet the deadline for the
submission of the heads of argument. On the 4
th
of September 2016, Mr Nzuta filed his heads of arguments and informed
the Court that he has since relieved his legal representatives
from
their responsibilities to represent him. This judgment was made
without the written arguments from the respondent.
Background facts
[3]
The
salient feature of this matter may be summed thus. The respondent
employed the applicant as a Colonel in its Forensic Science
Laboratory in Pretoria.
[4]
It
is common cause that the respondent, without pay, suspended the
applicant for misconduct. When the respondent lifted the suspension,
it charged the applicant for contravening the South African Police
Discipline Regulations by (i) failing to report for duty on
16 and 17
August 2010; (ii) conducting himself in an improper, disgraceful and
unacceptable manner toward his commander and (iii)
displaying
disrespect toward his superior in that he told him to “voetsek”
from his yard and that he was a sell-out
who was going to destroy
him. A disciplinary hearing was held at which, the applicant was
found guilty as charged. The chairperson
recommended his dismissal.
The applicant then lodged an internal appeal, which was dismissed.
This prompted the applicant to lodge
the current dispute.
[5]
At
the beginning of the proceedings, the respondent raised some
preliminary questions, which the court had to consider.
Preliminary issues
[6]
The
first issue raised was a special plea of
lis
pendens
in
that there was a pending application filed by the applicant in June
2012. To this effect, the respondent contended that the relief
sought
by the applicant was similar to the one under consideration. The
respondent then submitted that the current matter be dismissed
with
costs. In considering the plea, I found that this Court
per
Molahlehi J struck the applicant’s application off the roll and
directed that the applicant serves the statement of case.
Having made
the above findings, I then considered the requirements for the
granting of a plea of
lis
pendens
namely pending litigation between the same parties or their privies
based on the same course of action and in respect of the same
subject
matter. The special plea of
lis
pendens
was consequently dismissed because the first requirement of pending
litigation was not met.
[7]
The
second point raised by the respondent was in relation to the lack of
jurisdiction of this Court. The respondent contended so
goes the
argument that because the applicant argued that the respondent had
committed an unfair labour practice by failing to pay
his outstanding
salary, his matter should be referred to the bargaining council or
the Commission for Conciliation, Mediation and
Arbitration (CCMA).
Further, that prior to these proceedings, the applicant referred an
unfair dismissal dispute to the Safety
Services Sectoral Bargaining
Council (SSSBC), which was conciliated, and he failed to review the
conciliation ruling. The respondent
then argued that the applicant
had failed to exhaust all remedies provided for in the Labour
Relations Act 66 of 1995 (LRA).
[8]
The
court ruled that because the pre-trial conference minutes did not
disclose a set of facts that would have enabled it to determine
whether an automatically unfair dismissal took place, it decided to
hear the merit. It relied on the judgment of
Booysen
v NUMSA
unreported Labour Appeal Court Case no: JA13/13 delivered on 13 May
2014 to the effect that:
‘
Because the
existence of an alleged automatically unfair dismissal is a
jurisdictional prerequisite to the Labour Court hearing
a trial, it
must logically follow that it is incumbent on a court to enquire into
whether such a case has indeed been articulated
for its adjudication,
whether that question is raised by the litigants or not. This enquiry
is not to be confused with an enquiry
into the contested merits of
the allegations and counter-allegations, which is the purpose of the
trial itself.
If a proper
interpretation of the pleadings and any common cause facts put before
the court demonstrates the absence of a set of
circumstances that can
support a conclusion that a dismissal took place that was
automatically unfair then the court lacks jurisdiction
and ought to
refuse to hear the matter
.’
[9]
Having
made a ruling that the merits of the matter be heard in order to
determine whether an automatically unfair dismissal occurred,
parties
led evidence through their respective witnesses to which I now turn.
Evidence
of
parties
[10]
Two
witnesses
led evidence for the applicant and the other two witnesses led
evidence for the respondent. I should mention that the
testimonies of
the respective parties would be limited to facts relevant to the
automatically unfair dismissal claim (discrimination
and occupational
detriment).
Applicant’s
witnesses
Col Ndzuta’s
testimony
[11]
The
applicant testified that he holds a BSc degree and MSc degree from
Fort Hare University (in chemistry). He started working for
the South
African Police Services from the 1
st
of January 2005 at a rank of Colonel as a Control Forensic Analyst.
He said that his duty in that position was to analyse exhibits,
which
were used as evidence in criminal cases. He further testified that he
was later transferred to the Questioned Documents Unit
with a mandate
to set up a new subsection, Scientific Chemical Analysis, that deals
with chemical analysis of questioned documents.
[12]
The
applicant testified that the reason for his transfer to the
Questioned Documents Unit was that he made some protected
disclosures.
He said that when he was appointed in January 2005, he
was reporting to Brigadier de Klerk who had a diploma in Chemistry.
The
applicant further said that he was the only Black amongst Whites
and was subjected to racial abuse, victimisation and harassment
by
his superior. He then lodged some grievances outcomes of which
favoured him. Concerning the occupational detriment, he said
that he
wrote to the then Minister of Safety and Security, Mr. Charles
Nqakula, and the respondent’s top management around
July 2005
about corruption in the appointment process.
[13]
He
testified that on a Friday, prior to the interview that was scheduled
for the following Monday, he saw one of his colleagues
with three
White females in the laboratory. On the day of the interview, he saw
the same women again. They were there to attend
an interview. He
testified that they were the top performers in the said interview and
were all recommended for appointment. He
further testified that he
formed the view that they might have been tipped about the test,
hence they performed well. Furthermore,
he testified that although he
did recommend them for appointment, he made additional notes to the
Minister about what transpired
prior to the interview. He also said
that they were not appointed as a result and the Minister requested
an investigation. He did
not, however, know the outcome of the
investigation save to say that they were not appointed.
[14]
The
applicant further recalled that he was victimised and harassed
because of his letter to the Minister. He testified that the
position
of Head of Forensic Sciences Laboratory was advertised and her
immediate superior, Brigadier de Klerk applied and was
recommended by
Division Commander du Toit. However, the then National Commissioner
Selebi declined to appoint her but in her stead,
appointed Major
General Ngokha. The applicant testified that Brigadier de Klerk
vented her anger at him accusing him of being the
reason why she was
not appointed. He further testified that he was poorly appraised,
scored at 1 or 2 out of 5. He said he was
however not charged for
incompetence. This led to the deterioration of their relationship
which gave rise to more with verbal abuse
(calling him incompetent)
and disruption of his work, the applicant alleged. He testified that
most of the hostility was because
he joined the police service from
the top and did not start from the bottom to the top. This, in his
view, was because in the police
service the employees that did not
start from the bottom are seen as outsider or intruders. Hence, the
derogatory remarks by Brigadier
de Klerk that he was “not
suited for this environment, this is not [your environment]”.
[15]
Concerning
the transfer to the Questioned Documents Unit, the applicant
testified that he was transferred simultaneously with Brigadier
Tommy
Mothoa as the Head of the unit. He said that Brigadier Mothoa was
from the Criminal Record Centre with no chemistry background.
He
further testified that Brigadier Mothoa said at the first meeting
that he was transferred to get rid of certain members. Furthermore,
he testified that Brigadier Mothoa was in a mission to sabotage his
work to set up the unit he was in charge of. To this effect,
he said
that he had six new recruits in his unit that he had to train. He
then secured an expert from Germany to conduct some training.
Approval was given months in advance. He testified that
notwithstanding the approval, one of his trainees was required to
attend
physical training on the same period as his operational
training; he pleaded to no avail with Brigadier Mothoa and
unsuccessfully
sought help from Major General Ngokha.
[16]
The
applicant also cited an incident where Brigadier Mothoa instructed an
untrained and uncertified staff to handle exhibit, which
led to the
destruction of evidence. He testified that in terms of the quality
manual, only certified analysts carry out manual
forensic analysis.
He also testified that Brigadier Mothoa confiscated a set of keys and
case files thereby disrupting the smooth
running of his unit. He also
accused Brigadier Mothoa of destroying evidence and sending Colonel
Mathebula to confiscate some files.
[17]
Because
of these interferences, the applicant testified that he laid some
grievances against Brigadier Mothoa and suggested that
disciplinary
step be taken against him because his action amounted to defeating
the ends of justice. He further testified that
there was no outcome
to his grievances despite numerous follow-ups via e-mails and
telephone calls. Further that the situation
even worsened with
Brigadier Mothoa continuing with the disruption of his services with
secret meetings with his staff without
his knowledge. The applicant
then testified that he was frustrated, helpless and devastated in
that he had no recourse because
neither of the hierarchy would take
his grievances into consideration.
[18]
Concerning
his suspension, the applicant testified that he received the notice
of intention to suspend him on 12 August 2010. Lieutenant
Colonel
Mampane who replaced Lieutenant Colonel Du Toit a few days before,
had penned the said notice. He duly made representation
as to why he
should not be suspended but was eventually suspended. He testified
that he was subjected to unpaid suspension before
the last one and
had to have his suspension lifted through the Labour Court. He
testified that he was suspended on 16 August 2010
with effect from 24
August 2010 and that the Labour Court lifted this last suspension on
14 December 2011. Further, that while
of suspension for more than a
year he was never charged but was only charged upon returning to
work. In any event, he said that
his suspension without pay did not
meet the requirements provided in the Regulation. He then submitted
that he was being harassed
and victimised. He testified that upon his
return to work in January 2012; he was transferred under duress to
the Criminal Record
Centre with no work to do. He was later charged
with issues that took placed some 17 months before which led to his
dismissal.
[19]
On
the first charge of being absent from work, the applicant testified
that he was at work but did not attend the meeting that morning
because he was making representation about the notice to suspend him.
He said that an e-mail sent to the secretary bears testimony
that he
was at work. Further that the attendance register of the meeting
cannot evince his absence from work as some colleagues
were also
absent from the meeting. On the charge 2 for being disrespectful to
his superior, he testified that he did ask “who
closed the
door” because Lieutenant Colonel Du Toit closed the door when
she came in with Brigadier Mothoa knowing that the
door needs an
access card to be opened. He was in fact annoyed by the presence of
Lieutenant Colonel Du Toit to discuss a matter
of performance, which
is a subsection matter. Concerning charge 3, the applicant denied
uttering the words “voetsek”
when Brigadier Mothoa and
Lieutenant Colonel Du Toit visited his home. He said that he asked
them to leave and that they were not
welcome. In any event, he
submits that the words “voetsek” means get away quickly
and no derogative meaning should
be ascribed to it.
[20]
Under
cross-examination, the applicant conceded that there was no court
order to uplift his first suspension but submitted that
General
Phahlane uplifted it after seeing the court papers. About the
charges, the applicant conceded that he was not charged for
the first
time after been suspended in August 2010. In fact, the disciplinary
hearing was held on 28 March 2011.
[21]
The
applicant was at pains to concede that his complaint about corruption
relating to recruitment, a matter that he reported to
the Minister,
was based on assumption. He denied that he made an inference that
Dixon gave the White women questions paper before
the interview,
which led to them doing “exceptionally well”. In fact,
the respondent’s representative put to
him that Ms. Shisuba who
scored 59 did well than the ladies. On the issue on whether the
complaint to the Minister amounted to
a protected disclosure,
particularly that the non-appointment of Brigadier de Klerk was due
to his complaint to the Minister, the
applicant conceded with the
respondent’s representative that that information was based on
hearsay as the applicant did not
see the recommendation of the
interview panel.
[22]
With
regard to the issue of victimisation by Brigadier de Klerk and his
subsequent transfer to the Questioned Documents unit, the
applicant
conceded that there was an agreement for his transfer and that at no
stage did he raise victimisation. The respondent’s
representative put it to the applicant that his transfer was one of
the solutions by the commissioner who found that the applicant
and
Brigadier de Klerk had a clash of personalities, which affected the
operation of the respondent. Concerning his complaint against
Brigadier Mothoa, the applicant also conceded that he was not
transferred simultaneously with him but was transferred some few
weeks prior to Brigadier Mothoa’s transfer. He also agreed that
his belief, that Brigadier Mothoa’s statement that
he was there
to get rid of some people was referring to him, was based on
assumption. In respect of the complaint about Brigadier
Mothoa’s
interference in his job, the applicant conceded that he had issues
reporting to someone who was clueless about the
applicant’s
scope and work.
[23]
Moreover,
the applicant did not want him to attend the training because he
lacked the competencies and the skills and further because
“it
will detract my members from their focus since now they have to
accommodate a manager who is only there to bask in the
sun”. He
also conceded that Brigadier Mothoa gave him good marks for his
performance appraisal. The applicant conceded that
he did not agree
with Brigadier Mothoa’s managerial style and viewed it as
victimisation against him. The respondent’s
representative put
to the applicant that most of alleged victimisation or conspiracy is
based on assumptions: non-allocation of
posts to his unit; his being
accused of sexual harassment; Brigadier Mothoa forgetting the memory
stick when he was to do a presentation
in Bloemfontein; and holding
secret meetings with the applicant’s subordinates. Moreover,
the complaint that Brigadier Mothoa
did not allow his official to
attend a training was untrue because there was a withdrawal letter
emailed to the applicant that
the official was no longer
participating in the physical training. In any event, the applicant
conceded that the relief sought
for his grievances was to persuade
management to remove him from Brigadier Mothoa’s command so as
to operate independently.
The applicant stated that he wanted to
report directly to the Head of the Laboratory. He further stated that
most of the grievances
were because the alleged acts by Brigadier
Mothoa were without his knowledge.
[24]
Concerning
the charges against the applicant, it was put to him that he failed
to inform Brigadier Mothoa where he was on 17
th
August in light of Brigadier Mothoa’s evidence that he called
the applicant’s office, enquired from the HR and was
told that
the applicant was not at work. The applicant finally conceded that he
was dismissed only on charge 3 being disrespectful
to his superior as
his appeal against charges 1 and 2 were upheld. In respect of the
applicant being victimised by Phahlane, the
respondent’s
representative put to him that he could not be victimised because he
did not apply for that position. In reply,
he stated that he suffered
occupational detriment because of his dismissal and suspension that
prevented him from applying.
Mr P Ndala testimony
[25]
Mr
Ndala testified on behalf of the applicant. He stated that the
respondent from 4 March 2002 until January 2014 employed him.
He was
employed as forensics analysis attached to the Questioned Documents
unit. He was a shop steward and seconded to POPCRU in
2009. He
represented the applicant at the CCMA in his dispute with Ms Sonja de
Klerk. He further testified that the issue before
the CCMA was
related to harassment and victimisation because Brigadier de Klerk
would hold meetings with the applicant’s
subordinates without
him being involved hence ignoring the respondent’s protocol. He
said that the applicant joined the respondent
at the time when it was
undergoing transformation and was the only appointee at the highest
level. He testified that the environment
was hostile to Black
employees because it was predominantly White. Further, that he was
afraid that the applicant would suffer
the same fate (bearing in mind
that he did not come through the rank) like Dr Lusunsi who was the
head of the Chemistry unit who
resigned after being frustrated by the
management.
[26]
He
said that on his personal experience, Black people were unfairly
treated because they were trained for a longer period than their
White counterparts whose training was shortened to three or six weeks
compared to four years for Blacks. Consequently, the vast
majority of
Blacks could not be promoted nor have pay progression. Concerning the
outcome of the CCMA award, he testified that
an in-principle
agreement was reached to transfer the applicant to the Questioned
Documents unit.
[27]
Under
cross-examination, Mr Ndala confirmed what he said in his examination
in chief that after the advisory award of the CCMA,
he engaged with
management and, as a result, an in-principle agreement was reached to
transfer the applicant to the Questioned
Document unit to have peace
at the workplace. He said the intention to bring the matter to the
CCMA was to seek an amicable solution
to the dispute between the
applicant and Brigadier de Klerk. He denied that the applicant had
personality issue although they did
not challenge the award.
Lieutenant Colonel D
Ramalobe
[28]
Lieutenant
Colonel D Ramalobe is the second witness to testified for the
applicant. Unlike the applicant, he had gone through the
rank of the
respondent from Constable to Lieutenant Colonel. The respondent
however no longer employs him because he resigned because
he was
harassed and victimised because of making some protected disclosures
about corruption and theft of drugs at the forensic
unit. He started
working for the respondent in 1993, and his final post was at the
Questioned Document unit. He was a shop steward
and member of POPCRU.
Like Mr Ndala, he testified that the forensic unit was predominantly
White and that the applicant was the
beneficiary of the
transformation process engaged by the union. He also testified that
there was resistance from White employees
towards transformation of
the police service, hence the hostile welcome that he received upon
taking employment. In his words,
the applicant “was thrown into
a lion’s den”. Further, that it was agreed that no White
would be employed at
the forensic unit. This was in reply to a
question that Brigadier de Klerk made provision in the memorandum for
motivation to appoint
Whites. Concerning the transfer of the
applicant, he said that the applicant was transferred to the
Questioned Document unit after
the CCMA’s ruling.
[29]
Concerning
the various complaints of interference by Brigadier Mothoa,
Lieutenant Colonel Ramalobe testified that Brigadier Mothoa
as the
overall head of the Questioned Documents section oversees all
management functions. Brigadier Mothoa was just an administrator
whereas the applicant was spearheading a specialised unit. Further,
that Brigadier Mothoa was not in charge of the operational
matters of
the two subsections of which the applicant was heading the
traditional questioned documents unit and Colonel Mathebula
heading
the other subsection. He stated that under no circumstances will
Brigadier Mothoa interfere with the operational work of
the
subsection without the consent of the operational heads. He could not
for instance hold meetings with the applicant’s
officials
without him being present. Further, that Colonel Mathebula did not
have the competency or prerogatives to remove cases
filed from the
applicant’s section because he did not have a natural sciences
background and that protocol of his section
and that of the applicant
was different.
[30]
Under
cross-examination, he testified what he said in his examination in
chief that Brigadier Mothoa was the Head of both sections
whereas the
applicant and Colonel Mathebula were heading their respective
subsection. He said to this effect that the reporting
line was
divided between the operational heads and the administrative head,
Brigadier Mothoa. Further, that the issues between
the applicant and
Brigadier de Klerk were because Ms de Klerk was not giving the
support the applicant needed from her. He distanced
himself from the
applicant’s allegation that General Phahlane dismissed him
because he wanted to pave his way for his girlfriend.
He, however,
confirmed what he said in the examination in chief that his complaint
led to the nullification of the appointment
of Ms. Morapedi because
of some misrepresentation in her application. He denied that the
meeting he had with the applicant and
Ms. de Klerk was to issue a
warning letter to the applicant hence maintaining his evidence that
the meeting was to resolve conflicts
between the two.
The respondent’s
witnesses
Brigadier S de Klerk
[31]
Brigadier
de Klerk is the first witness to testify on behalf of the respondent.
She testified that she joined the respondent Forensic
Sciences
Laboratory since 1993. She is the Head of the Scientific Analysis at
the Forensic Sciences Laboratory. She testified that
as the Head, she
overlooks all the activities of the section under her command
including operational activities. She testified
that when the
applicant joined the respondent, she assisted him with the training
and that he was reporting to him. She said that
their relationship
was strained because the applicant has problems reporting to her and
submitting reports to her office. She also
said that the applicant
had the tendency to leave work without permission and going to
Medunsa. She was obliged under the circumstances
to warn the
applicant verbally but when nothing changed, she had a meeting with
him with the applicant’s two witnesses. On
this score, she
differed from the applicant’s last witness in that the meeting
was to issue the applicant with a warning
letter formally. What
ensued in the meeting is a subject of contradiction. She testified
that the applicant burst, threw the table
and one of his witnesses
ask him to calm down. The meeting was eventually abandoned.
[32]
Concerning
the grievances led by the applicant, she testified that the applicant
views as victimisation any instruction giving to
him. Further, that
she first made use of consultation with the applicant about his
insubordination and non-performance. When consultation
failed, she
took disciplinary actions. In respect of the applicant’s
complaint about the recruitment, she testified that
the applicant was
the chairperson of the panel who signed the memorandum. That she only
intervened when the applicant and Ms L
Berg informed her that the
passed rate was low. They agreed to lower the pass rate from 70 to 50
percent. As regards the motivation
to appoint a White candidate
despite an undertaking at management meeting to follow equity, she
said that the reason was operational
so as to decrease the backlog.
Contrary to the applicant’s two witnesses, she testified that
unions were never present at
management meeting when operational
matters were discussed. She declined to comment on the applicant’s
allegation that she
was not appointed because of complaint to the
National Commissioner. The essence of her testimony is that she
neither victimised
the applicant nor conspiring with anyone as
alleged by the applicant.
[33]
Under
cross-examination, she confirmed in essence what she said in the
examination in chief that she did not victimise the applicant
but
that the applicant was reluctant to report to her and failed to
submit reports at times. The bulk of the cross-examination
was about
her failure to adequately discipline the applicant. She responded
that she did discipline him and escalated the matter
to the hierarchy
because she could no longer handle an issue on which she was the
accused. As regards the complaint on the recruitment
process, she
reiterated that the panel made a recommendation and that she did see
the motivation therein only when the matter was
escalated to the
Minister. She clearly stated that the applicant chaired the interview
and must have reached an agreement with
other panel members.
Concerning the removal of the exhibits from the laboratory, she
indicated that exhibits could only be removed
with permission.
General E K Ngokha
[34]
General
Ngokha is the second and last witness to testify on behalf of the
respondent. He is the National Head of the Sciences Laboratory
since
2006. He disputed that Ms de Klerk cried when he was appointed but
instead said that she congratulated him and hugged him.
He testified
that the applicant had an impersonal relationship with Ms de Klerk,
which led to the advisory award by the CCMA. He
said that in order to
comply with the award, the respondent engaged with the union and an
agreement was reached to transfer the
applicant to the Chemical
Analysis a subsection of the Questioned Documents unit. As regards
the applicant going to Medunsa without
permission, he said that
exhibits could not be removed to another environment, and more so
when there was no memorandum of understanding
with the institution.
He testified to that effect that the applicant did not heed to his
advice not to do the analysis at Medunsa.
[35]
General
Ngokha further testified that Ms de Klerk issued warning to the
applicant and virtually handed the matter to him because
she was
accused of being racist and victimising the applicant each time she
reprimanded him. He confirmed that there was an investigation,
but
there was no outcome as the applicant was transferred to the
Questioned Documents unit. He denied the applicant’s allegation
that Brigadier Mothoa was moved to the Questions Documents unit to
further his victimisation. The gist of General Ngokha’s
evidence about the complaints by the applicant is that some of the
complaints lacked evidence and that in any event the applicant
was
never victimised. He testified that he did attend to the complaints
escalated to his office and that agreement was reached,
and parties
moved on.
[36]
Under
cross-examination, he simply confirmed what was said in his
examination in chief that he dealt with all the grievances of
the
applicant though there was no evidence to that effect.
Legal principles and
Evaluation
[36]
As indicated above, the applicant seeks an order to the effect that
his dismissal be declared automatically unfair on account
of
discrimination and occupational detriment for having made some
protected disclosures in terms of the PDA. In terms of section
187(1)(h) of the LRA, 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 PDA, by the
employer, on account of an employee having made a protected
disclosure defined in that Act. The objects of the PDA are set out in
section 2 (1) of the Act:
‘
2(1) The
objects of this Act 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.’
[37]
The PDA makes provision for procedures in terms of which employees in
both the private and public sector may disclose information
regarding
unlawful or irregular conduct by their employers or other employees
in the employ of their employers. It further provides
for the
protection of employees who make disclosure, which is protected in
terms of this Act. Section 3 of the PDA provides that
no employee may
be subjected to occupational detriment by his or her employer on
account, or partly on account, of having made
a protected disclosure.
[38]
The first question would be whether the applicant made a protected
disclosure. A disclosure is defined in section 1 of the
PDA as
follows:
‘“
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.’
[39]
For the applicant to qualify for the protection and remedies in
connection with any occupational detriment suffered on account
of
having made a protected disclosure under PDA, he must satisfy this
Court that the communication he made was a disclosure as
defined in
the Act. The applicant is further required to prove that the said
disclosure falls within the definition of protected
disclosure as
provided for in section 1. The protected disclosure is defined in
section 1 as follows:
‘
Protected
disclosure means 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;
[40]
In this instance, the applicant alleged that he made a disclosure of
information in a form of a letter to the Minister, regarding
his
colleague who allegedly perpetuated corruption relating to
recruitment process in his unit. Section 7 of the PDA provides that
any disclosure made in good faith to the member of Cabinet or of the
Executive Council of a province is protected disclosure if
the
employee’s employer is –
(a)
an individual appointed in terms of legislation by a member of
Cabinet or of the Executive
Council of a province;
(b)
a body, the members of which are appointed in terms of legislation by
a member of Cabinet
or of the Executive Council of province; or
(c)
an organ of state falling within the area of responsibility of the
member concerned.
[41]
Apart from the requirements for procedures in terms of which an
employee can, in a responsible manner, disclose information
regarding
improprieties by his or her employers, he is required to prove that
the disclosure was made in good faith. The applicant
testified that
prior to the interview scheduled for the following Monday, he saw one
of his colleague with three White females
in the laboratory on
Friday. On the day of the interview, the same women were interviewed.
He testified that they were the top
performers and were all
recommended for appointment. Further that he formed the view that
they might have been tipped about the
test hence they performed well.
However, the applicant conceded that his complaint was based on
assumption and further denied that
he made an inference that Dixon
gave the White women questions paper before the interview, which led
to them doing “exceptionally
well”. In fact, the
respondent’s representative put to him that a Black woman (Ms
Shisuba) who scored 59 did well than
the ladies. This proposition was
not disputed by the applicant. On the balance of probabilities, it
does not appear to have been
anything to support allegations conveyed
to the Minister in this issue, which might have prompted the
applicant to have a reason
to believe that such impropriety had taken
place. In
Radebe
and Another v Premier, Free State Province and Others,
[2]
the LAC dealt with the requirement of good faith and held as follows:
‘
[35] There
is further, in my view, an overlap when determining whether the
employee making the disclosure was acting in good faith
and further
whether he had the requisite reason to believe when making a
disclosure that improprieties had been committed or were
continuing.
Honesty plays a pivotal role in both situations. Whilst good faith
and honesty may conceivably amount to the same thing,
I am of the
view that a case by case approach is the proper one for a court
considering these issues. Factors such as reckless
abandon, malice or
the presence of an ulterior motive aimed at self advancement or
revenge, for instance, would lead to a conclusion
of lack of good
faith. A clear indicator of lack of good faith is also where
disingenuity is demonstrated by reliance on fabricated
information or
information known by the employee to be false. The absence of these
elements on the other hand is a strong indicator
that the employee
honestly made the disclosure wishing for action to be taken to
investigate it.
[36] Simply stated if an employee
discloses information in good faith and reasonably believes that the
information disclosed shows
or tends to show that improprieties were
committed or continue to be committed then the disclosure is one that
is protected. The
requirement of ‘reason to believe’
cannot be equated to personal knowledge of the information disclosed.
That would
set so high a standard as to frustrate the operation of
the PDA. Disclosure of hearsay and opinion would, depending on its
reliability,
be reasonable. A mistaken belief or one that is
factually inaccurate can nevertheless be reasonable, unless the
information is
so inaccurate that no one can have any interest in its
disclosure. (See also the statement in
Babula
(
supra
)
at para 41 where it was held that: ‘
Darnton
seems to me clear authority for the proposition that
whilst an employee claiming the protection of ERA 1996, section 43(1)
must
have a reasonable belief that the information he is disclosing
tends to show one of more of the matters listed in section 43B(1)(a)
to (f), there is no requirement upon him to demonstrate that his
belief is factually correct; or, to put the matter slightly
differently,
his belief may still be reasonable even though it turns
out to be wrong.) If the primary or exclusive purpose of reporting is
to
embarrass or harass the employer the reasonableness of the
employee's belief is also questionable.’ (Footnotes omitted)
[42]
Although the applicant conceded that his complaint was based on
assumption, and therefore not factual he had a reason to believe
when
making a disclosure that improprieties had been committed or were
continuing. There is no requirement for him to demonstrate
that his
belief is factually correct. It is my view that his belief is
reasonable. I accept that the disclosure was made by the
applicant to
the Minister in accordance with the provisions of section 1(a) and
section 7. As such, it follows that the disclosure
made by the
applicant was protected as provided for in the PDA.
[43]
The question that arises is whether the applicant was subjected to
any occupational detriment. In this instance, the alleged
occupational detriment suffered on account of making a protected
disclosure is dismissal which is automatically unfair in terms
of
section 187(1)(h) of the LRA. Occupational detriment is defined in
the PDA and it includes dismissal.
[3]
There ought to be some causal link between the disclosure and the
alleged occupational detriment
.
The
applicant’s case is his dismissal was that he was denied
promotions, pay progression, and incentive payments; he was removed
from work station under duress and confined in a dingy office for no
reason; he was dismissed and he lost future earnings.
[44]
Concerning his subsequent transfer to the Questioned Documents unit,
the applicant conceded that there was an agreement for
him to be
transferred and that at no stage did he raise victimisation. His
transfer was one of the solutions by the commissioner
who found that
the applicant and Ms de Klerk had a clash of personalities, which
affected the operation of the respondent. The
applicant further
conceded that he was dismissed only on charge 3 being disrespectful
to his superior as his appeal against charges
1 and 2 was upheld. In
respect of the applicant being victimised by Phahlane, the
respondent’s representative put to him
that he could not be
victimised because he did not apply for that position. In reply, he
stated that he suffered detriment because
of his dismissal,
suspension that prevented him from applying.
[45]
From the evidence, the applicant failed to establish the causal link
between his disclosure and the alleged detriments. In
the absence of
the causal link between his disclosure and the alleged detriments the
applicant did not suffer occupational detriment
as per the provisions
of PDA. It follows that the applicant’s dismissal was not
automatically unfair as contemplated in section
187(1)(h) of the LRA.
[46] The applicant’s
case is further that the respondent was in violation of section
187(d) of the LRA in that he lodged grievances
which were not
considered. The said grievances related to the alleged allocation of
a case to an untrained analyst, confiscation
of files and exhibits,
confiscation of laboratory keys and blocked below of cases by
Brigadier Mothoa. General Ngokha’s evidence
about the
complaints by the applicant is that some of the complaints lacked
evidence and that in any event the applicant was never
victimised. He
testified that he did attend to the complaints escalated to his
office and that agreement was reached, and parties
moved on. Under
cross-examination, the applicant testified that most of the
grievances were because the alleged acts by Brigadier
Mothoa were
done without his knowledge. He conceded that the relief sought for
his grievances was to persuade management to remove
him from
Brigadier Mothoa’s command so as to operate independently. The
applicant stated that he wanted to report directly
to the Head of the
Laboratory as he viewed Brigadier Mothoa to be incompetent. In this
regard, the applicant has not established
a causal link between the
grievances he made and his dismissal. As such the applicant’s
dismissal was not automatically unfair
as contemplated in section
187(1)(d) of the LRA.
[47]
In relation to the alleged respondent’s violation of section
187(f), the applicant’s case is that he suffered harassment
and
victimisation. The applicant alleged that the said acts of harassment
and victimisation were brought to the respondent’s
attention,
but the respondent condoned them. They comprised of two successive
suspensions without valid reason and pay, performance
appraisals that
were biased against him, verbal abuse and trumped up charges with no
substance. It was the applicant’s argument
that the
discrimination he suffered was on the ground of race, educational
background as well as career background.
[48] The applicant
testified that the non-appointment of Brigadier Sonja De Klerk to the
position of Head of Forensic Sciences Laboratory
resulted in her
venting her anger at him accusing him of being the reason why she was
not appointed. However, he further testified
that most of the
hostility is because unlike others he joined the police service from
the management position. Brigadier De Klerk
testified that the
applicant views any instruction giving to him as victimisation. She
further testified that she first consulted
with the applicant about
his insubordination and non-performance. When consultation failed,
she took disciplinary actions. In relation
to his appraisal, the
applicant conceded that Brigadier Mothoa gave him good marks for his
performance appraisal. It is apparent
from the evidence that the
issue of unfair suspension was referred to this Court and an order
was issued. The applicant conceded
that he was dismissed on charge 3.
It follows that he was not dismissed because of his race or academic
qualifications. I find
that the applicant failed to establish that
his reason for dismissal was as a result of discrimination based on
race, educational
background as well as career background.
[49]
Based on my finding that the applicant failed to establish that his
dismissal was automatically unfair as contemplated by section
187(d),
(f) and (h), I am also satisfied that on the third charge which he
was found guilty of the applicant's dismissal was appropriate.
Apart
from the applicant’s attempts to persuade management to remove
him from Brigadier Mothoa’s command so as to operate
independently, he did not want to see him and he viewed him as a
sell-out that was going to destroy him. There was no prospect
of
repairing the working relationship between him and his superiors. He
viewed his transfer to Questioned Documents unit, notwithstanding
that it was as per agreement to avoid personal clashes between him
and Brigadier De Klerk, as victimisation and Brigadier Mothoa’s
agenda to ensure the dysfunction and ultimate destruction of his
subsection. This is a clear indication that the applicant displayed
disrespect at the workplace and that the working relationship was
broken down to an extent that it could not be repaired.
[50]
The applicant’s claim of a procedurally unfair dismissal
related to the respondent’s failure to consider his appeal
within 30 days and further to his suspension without pay. In this
regard, the applicant submitted that he approached this Court
for
relief for which orders were issued. As such, it is my view that the
applicant’s claim of procedural unfairness has no
merit.
Costs
[51] With regard to
costs, I am of the opinion that the requirements of law and fairness
dictate that there should be no order as
to costs.
Order
[52] Accordingly I make
the following order:
a)
The applicant’s claim for automatically unfair dismissal is
dismissed and
I find that his dismissal was substantively and
procedurally fair.
b)
No order as to costs.
__________________
Mahosi AJ
Acting Judge of the
Labour Court
APPEARANCES:
FOR THE APPLICANT:
Adv. MM
Ndziba,
Instructed by Mashaba
Attorneys.
FOR
RESPONDENT:
Adv. D. Mtshweni
Instructed
by State Attorney.
[1]
Act
26 of 2000.
[2]
(2012)
33 2353 (LAC) at paras 35 and 36.
[3]
Section
1 of the Protected Disclosure Act 26 of 2000.