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[2018] ZALCJHB 309
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Ward v Oraclemed Health (Pty) Ltd (JS955/2016) [2018] ZALCJHB 309 (2 October 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JS 955/2016
In
the matter between:
FAITH
ERLINA
WARD
Applicant
and
ORACLEMED
HEALTH
(PTY)LTD
Respondent
Heard:
18 -20, 29 June 2018
Delivered:
02 October 2018
Summary:
Automatically unfair dismissal dispute i.t.o ss187(1)(h) of the
LRA-General test applicable in section 187 dismissals is
not the only
test applicable in automatically unfair dismissal under ss 187(1)(h),
as PDA’s requirements have to be proven-
It is enough that an
employee show that some of the information disclosed was
substantively true- the Labour Court not required
to determine the
correctness of the information-Meaning of good faith- an employee is
required to show good faith-motive for dismissal
led to dismissal of
the claim-section 158(2)(a) of the LRA-Court may refer a dispute to
the CCMA for arbitration after ruling that
it has no jurisdiction.
JUDGMENT
MABASO,
AJ
Introduction
[1]
Mlambo JP
[1]
in
Radebe
and Another v Premier Free State Province and Others
[2]
in giving guidance as to the interpretation of the Protected
Disclosure Act, 26 of 2000 (the PDA) provisions said,
‘
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
.’
[3]
(Own
emphasis)
[2]
In the pre-trial minute, the parties had indicated that this Court
has to determine three issues, Firstly, whether the applicant
tendered her resignation in May 2016 and whether the respondent
accepted such resignation. Secondly, if there is a dismissal,
whether this Court has jurisdiction to adjudicate this matter
in that it is an
automatically unfair dismissal dispute
[4]
and lastly, whether the disclosure made by the applicant to the
Financial Service Board
(the FSB) is a
disclosure in terms of the PDA.
[3]
Midtrial, Counsel for the parties agreed that the issues of
resignation and dismissal were no longer in dispute, therefore,
this
Court was urged to determine whether such dismissal was automatically
unfair or not in terms of the provisions of subsection
187(1)(h) of
the Labour Relations Act
[5]
(LRA) which provides that the dismissal is automatically unfair if
the reason for the dismissal is in contravention of the PDA
by the
employer in that the employee had “
made
a protected disclosure defined in [the PDA]
”.
[4]
The Applicant is Ms Faith Erlina Ward (the Applicant) who was
dismissed by
OracleMed
Health (Pty) Ltd (the Respondent) following an anonymous email that
she sent to the FSB. The reason for dismissal, according
to the
respondent, is that the applicant breached the contract of employment
“related specifically to the preservation of
secrecy, misuse of
information and integrity.”
[6]
It
is common cause that the applicant was dismissed on 03 August 2016
(the second dismissal dispute).
[5]
Subsequent to her dismissal,
the applicant
declared an unfair dismissal dispute at the Commission for
Conciliation, Mediation and Arbitration (CCMA), which remained
unresolved after conciliation. The applicant then referred the
dispute to this Court, alleging that her dismissal was automatically
unfair. Whereas, the respondent averred that this Court has no
jurisdiction due to the fact that the applicant’s dismissal
is
ordinary misconduct which should have been dealt with under
subsection 191 (5)(a) (i)
[7]
of the LRA.
Therefore, causation is in dispute, meaning this Court has to
determine whether it has jurisdiction or not and if it
finds that it
has the jurisdiction then it will continue to determine if the
dismissal was fair or not.
Summary
of evidence:
[6]
The evidence of the applicant, in her attempt to support her
allegations that this dispute is an automatically unfair dismissal
dispute is summed up as follows:
6.1 She joined the
respondent in April 2010 as a Junior Policy Administrator.
6.2 In April 2014 she was
promoted into the position of Underwriting and Policy Administration
Manager
.
Her duties were that of policy
administration and management of the administration department.
6.3 She remained in this
position until May 2016 when she resigned with immediate effect on 12
May 2016 following “
a horrible argument
with the CEO of the company round about May …felt that [her]
right to dignity at the time was violated
by [the CEO]”
.
[7]
She averred that the working environment was tense in her department
because it was understaffed as the respondent failed to
replace those
employees who had resigned, she was not allowed to take leave.
[8]
As a result of the strenuous working environment, she went to visit
an Occupational Health Therapist, who diagnosed her with
Burnout
Syndrome, and issued her with a report recommending to the respondent
that she be assisted by reducing her work responsibilities.
Following
this recommendation, the respondent through Ms Pat Hainsworth, the
COO, and who was the CEO’s wife, made an undertaking
to the
applicant that the respondent would “
do
all efforts necessary with regard to making sure that I take the
necessary breaks and holidays
.” Indeed,
she did take a week’s vacation on a cruise, however, when she
returned she found that there were still a
lot of duties awaiting
her.
[9]
In February 2016 the applicant fell ill and had to be hospitalised.
Later she learned that she had a panic attack, and when
her sister
visited her in hospital the applicant told her that it was that in
her mind she had just been thinking about her
workload.
At some stage, she was hospitalised twice. And she
blames all that strain on her health on her working environment and
lack of support
from the management of the respondent.
[10]
Despite all of these, on 11 May 2016, the applicant was called into
the office of Mr Van Der Knaap (the CEO), who accused her
of being a
poor performer. During this meeting, it was mentioned to her that the
Occupational Health Therapist’s report was
“
a
complete lie, [she] made [the respondent] look bad,
“and
she was labelled obese. The following day she reported for duty,
after she had spoken to her family which resulted
in her
resigning with immediate effect.
[11]
On 20 May 2016, she referred an unfair dismissal dispute against the
respondent to the Commission for Conciliation, Mediation
and
Arbitration (CCMA) claiming constructive dismissal
[8]
(first
dismissal). The respondent did not accept the resignation letter and
sent her a correspondence demanding that she should
serve four weeks’
notice
[9]
and do a proper
handover. On payday, she did not receive her salary and leave days to
pay, as she had 17 leave days due. Upset
by the respondent’s
conduct, on 03 June 2016 she sent the letter to the FSB claiming that
the respondent was committing misconduct
and violating applicable
laws in the way it conducts its business.
[12]
The constructive dismissal dispute was subsequently settled in that
the applicant was “
reinstated
”
and be appointed in a different position and further that money that
was owed to her was to be paid by the respondent. She
resumed duty on
20 June 2016. The letter that had been sent to the FSB was brought to
the attention of the respondent, and therefore
the applicant was
summoned before a disciplinary hearing to answer to allegations of
misconduct which involved her release of confidential
information to
the FSB. The applicant was later dismissed which resulted in this
dispute.
[13]
During the trial
she referred to some of the
bundle of documents presented before this court insisting that she
reasonably believed that the disclosed
information was substantially
true. Moreover, averred that the disclosure was done in good faith.
[14]
It was only during cross-examination that the applicant painted a
different picture of the respondent's management especially
the COO,
for example, she mentioned that the COO had a good relationship with
her, she had a sympathetic attitude towards her and
also financed her
daughter's wedding. About being understaffed, the applicant confirmed
that the COO started the interviewing process
which was interrupted
when she fell ill. She attributed the excessive hours that she worked
to the fact that she was "performance-driven".
In respect
of the alleged abusive behaviour from the CEO, she said it started
after she presented the respondent with the report
from the
Therapist.
[15]
During cross-examination, the applicant proceeded to explain in
detailed her complaints to the FSB which
inter
alia,
consisted of the complaint (complaint 1) which says that the
respondent sold a policy “
to
a
company in Angola –Seadrill which included a financial benefit
-it stated that in the event of that of any employee not
occasioned
by any circumstances excluded in the policy, if the benefit will be
paid in the amount of USD$5 000 per insured
person”
.
She confirmed that
a company called Constantia Group is an insurer and the respondent is
an administrator who is issuing policies
on behalf of Constantia
Group. I propose not to deal with each and every complaint as I state
below that there were concessions
made and the inquiry that I have
been asked to conduct in this matter.
[10]
[16]
According to the applicant, there was something amiss about what the
respondent did as her understanding was that the respondent
was
registered as a short-term insurer and when she communicated with the
FSB to highlight that something was not right because
the funeral
benefits will only be offered under long-term insurance, she conceded
when it was put to her, being supported by a
document titled “
Policy Schedule for Seadrill Angola LAD” which formed part of
her bundle of documents before this
Court, that this complaint was
not substantially true as the respondent had conducted the
transaction in a proper manner and that
the issued funeral cover was
issued by Constantia Group which has both short and long-term
insurance covers.
[17] I propose to look at
complaint 6, the applicant stated that the policies issued on the
respondent’s paper for inpatient
and outpatient, as a result of
this in 2015 Aon Brokers advised the respondent that it was not
licensed to issue such policies
which included the Afrox policy on
the respondent paper, as the respondent’s licence did not carry
the benefit. The applicant
further stated that the respondent was
allowed to issue policies to individuals but not to companies or
groups. When this was brought
to the attention of the CEO, he
instructed her to correct this. Since the CEO did not testify, I
accept this version.
Again, I need to
emphasise that I am not saying this statement by the applicant is
correct or not, as such inquiry is not before
me since the purpose of
the PDA does not suggest such inquiry to be initiated by this Court.
I must indicate at this juncture that
if the general section 187
test, which is “
the
dominant or most likely cause of the dismissal”
[11]
was
the only test applicable in this matter, not the second leg test (the
PDA requirements test), my conclusion below would have
been
different, because the CEO did not testify.
[18]
The full list of complaints is contained in the email dated 03 June
2016. The applicant made concessions that her complaints
were not
substantially true, but said she only realised this when it was put
to her during cross-examination. However, she was
adamant that at the
time of the disclosure she had laboured under the impression that
those complaints were substantially true.
[19]
Under cross-examination, the applicant confirmed that the email was
sent to FSB when she was angry at the respondent due to
non-payment
of her salary and moreover, she was vindictive. Part of the
cross-examination in this regard is as follows:
‘
Respondent’s
representative
:” so you could pay them back?
Applicant
: I wrote to the FSB
because I felt it was justified.
Respondent’s representative
:
ja, you paid them back because you were angry, am I correct?
Applicant:
I wrote to FSB, yes.
Respondent’s representative:
just answer my question, you paid them back because you were angry?
Applicant
: I said yes yes.”
[20]
During cross-examination it transpired that despite all the concerns
that the applicant had, she was aware of the internal
grievance
procedure to be followed but she opted not to use one, and the
relationship between her and the managers was not as bad
as she
painted. For example, when her daughter was getting married one of
the managers used his credit card to buy a dress for
her at a fee of
R12 000.00.
The applicant confirmed that she had
a “
personal relationship as well
”
with the COO of the respondent.
[21]
Further, the applicant conceded that complaints 1 to 7 had no
substance. She further confirmed that following the complaint,
the
respondent submitted a response to FSB which was accepted by the
Registrar of the FSB as satisfactory. Following these concessions,
Mr
Van Graan submitted that what this Court needs to look at is that the
information disclosed was simple information and further
that, the
position of the applicant at the time of the disclosure, the training
that she had, the experience of success counts
against her. In
essence, I must determine the state of mind of the applicant by 03
June 2016.
[22] In its endeavour to
refute the claim that at the time when the applicant made the
disclosure, she could not have reasonably
believed that the
respondent was committing misconduct and/ or violating law in its
operation, the respondent called its general
manager, Mr Martin O’
Brien Van Der Westhuizen, whose evidence centred around two issues
namely whether the disclosure was
a
bona fide
disclosure and whether the applicant could have reasonably believed
that the complaint had substance.
The evidence of
this witness can be summarised as set out below.
[23]
He joined the respondent in October 2015 and confirmed that the
applicant at the time was the manager of policy administration.
Policy schedules were drafted by the administration department headed
by the applicant. In respect of complaint 1, the policy document
in
its introductory paragraph shows that the policy was between Cedral
Angola and Universal Serguros. With this, he testified that
it was
not possible that the applicant was under the impression that the
respondent was the insurer, taking into account that she
was a
manager in the same department that generated the policy document.
[24]
In essence, this witness draws this Court’s attention to
documents which were presented by the applicant which shows
that it
was not possible that the applicant reasonably believed that the
information was substantially true. The evidence of Mr
Van Der
Westhuizen did not assist this Court, as he did not bring something
different from what the applicant said. For example,
he could not
comment on what the applicant said about the CEO following the Aon
Brokers' findings, as discussed in paragraph 17
above.
The
law and application thereof
[25]
A dismissal is automatically unfair if
inter
alia,
an employer in dismissing an employee acts contrary to the provisions
of section 187(1)(h) of the LRA which provides that if the
reason for
dismissal is “
a
contravention of the Protected Disclosures Act,2000, by the employer,
on account of an employee having made
a protected disclosure
defined
in that Act”.
[12]
In its preamble, the PDA recognises that criminal and other irregular
conduct in the organ of state and private bodies are detrimental
to
good, effective, accountable and transparent governance and can
hamper good governance. Therefore, employees who report their
employers to relevant authorities have to be protected.
[26]
In order to determine the issues before this Court, I opine that the
following has to be taken into account: that section 192
of the LRA
provides that an employee must establish the existence of the
dismissal, and once this has been successfully discharged,
then an
employer must prove that the dismissal was fair. However, in matters
of this nature, an evidentiary burden lies with such
dismissed
employee to show that there is a legitimate claim for automatically
unfair dismissal.
[13]
[27]
In this matter, I must take into account that the test is one of
balance of probabilities, in that a party whose version of
facts
appears to be more probable is entitled to an order, and that if
there is an issue that has to be decided based on an inference,
a
court has to “
select
a conclusion which seems to be the more natural, or plausible,
conclusion from among several considerable ones, even though
that
conclusion be not the only reasonable one”.
[14]
[28]
The representative for the applicant, during the trial was not clear
as to whether the applicant relies on section 8 or 9 of
the PDA
however, during the closing arguments he confirmed that the reliance
was on section 9.Whether the applicant’s representation
submission was wrong or right is not important, because even if he
had stated that the applicant’s case was based on subsection
(8)(1)(c)(i)
[15]
my conclusion,
below, was to be the same as both sections 8 and 9 require that
disclosure should be in “good faith”.
I now proceed to
set out key subsections of s 9 of PDA which have relevance in this
matter, and they read thus:
‘
9. General protected disclosure
(1) Any disclosure made
in good
faith
by an employee or worker –
(a)
who
reasonably believes
that the information disclosed,
and any allegation contained in it, are
substantially true
;
and
(b)
who does not make the disclosure for purposes of personal gain
,
excluding any reward payable in terms of any law;
is
a protected disclosure if—
(i) one or more of the conditions
referred to in subsection (2) apply; and
(ii) in all the circumstances of the
case, it is reasonable to make the disclosure’
[16]
[29]
Subsection 9 (1) provides that the disclosure should be made in good
faith by such an employee who has reasonably believed
that such
information is substantially true and by doing so it was not for
personal gain. These are the key requirements that must
be met before
moving to subsections 2 and 3 of section 9. Clearly, in this matter,
the respondent says the applicant acted
mala
fide
as
she presented the information to the FSB being motivated by being
vindictive. I have to remind myself that the issue is about
the
reasonableness of the belief, not of the reasonableness of the
information disclosed.
[17]
[30]
The central point in this matter is the issue of good faith as partly
indicated by the respondent’s representative during
the trial.
One has to determine the state of mind at the time of releasing the
information to the FSB. The SCA in the matter of
Mbethe,
[18]
where it had to determine good faith based on the state of mind using
inference said,
’
[20] In our law it would not
be a matter of mere assertion by an applicant that he possesses the
requirement of good faith. Although
the test for good faith is
subjective, relating as it does to the state of mind of an applicant,
it is nevertheless subject to
an objective control. The state of mind
of an applicant has to be determined by drawing inferences from the
objective facts, as
revealed by the evidence.
[21] The appellant states that he
has acted in good faith in order to protect the interests of the
respondent. The Respondent denies
this and alleges that the appellant
lacks an honest purpose in seeking leave to institute a derivative
action in the name and on
behalf of, the respondent. The dispute is
whether the appellant has misrepresented his state of mind’.
[31]
This Court, by Van Niekerk AJ (as he then was), in the matter of
MTN
[19]
held that,
‘
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. It does not
necessarily follow though that good faith requires proof of the
validity of any concerns or suspicions that an employee may have,
or
even a belief that any wrongdoing has actually occurred. The purpose
of the PDA would be undermined if genuine concerns or suspicions
were
not protected in an employment context even if they later proved to
be unfounded. There is no doubt why disclosures made in
general
circumstances require in addition to good faith a reasonable belief
in the substantial truth of the allegation. 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’
.
[32]
Section 9 of the PDA does not suggest that an employee should have
had a reasonable belief that
all
the information that he disclosed should be substantively true. That
could not be the intention of the legislature. I am aware
that the
LAC in
Kroukam v SA Airlink
said “
section 187 imposes an evidential
burden upon the employee to produce evidence which is sufficient to
raise a credible possibility
that
” the
dismissal falls under it. It is simpler if the dispute is about
subsections 187(1)(a) ;(b);(c);(d);(e);(f); and (g),
but (h) requires
more in that provisions of the applicable PDA (the PDA requirements
test) has to be investigated based on the
evidence before Court.
[33]
Taking in account what I have said in paragraphs 17, 18,21,24 and 25
above, that the applicant has evidential burden to produce
evidence
that raises a credible possibility of his claim and that she has no
onus of proof, coupled with the fact that the onus
in this matter is
with the respondent, I rule in favour of the applicant that at the
time when she disclosed the information she
reasonably believed that
some of the information(only in respect of complaint 1) was
substantively true.
However, an applicant,
whether she relies on section 6, 8 and/ or 9, the PDA requirements
test requires her to show among others,
good faith.
[34]
In casu
, the
circumstances before and immediately after the first dismissal, guide
this Court to draw the inference in respect of the state
of mind of
the applicant at the time when the disclosure was made, to determine
good faith. The applicant painted the picture of
the environment she
worked under as she stated that the CEO “violated her right to
dignity” in the meeting that took
place in May 2016; she was
accused of being a poor performer despite not getting support from
the management, labelled a liar and
wanted the respondent to look bad
as per the Occupational Health Therapist report; she twice suffered
from the panic attack and
the only reason that she could think of was
the work overload. All of these resulted in the resignation and the
constructive dismissal
dispute being declared.
[35]
It is common cause between the parties that the respondent did not
immediately comply with section 40 of the BCEA, in
that the
applicant was entitled to payment of remuneration on termination of
employment. The applicant constantly during cross-examination
confirmed that this was the motive to approach the FSB, as stated in
paragraph 16 above. In amplifying this point, the following
exchange
is also important,
’
Respondent’s
representative
: Right. Now, both your statement of case and in
the outcome of the disciplinary hearing no other reason was given by
you as motivation
for blowing the whistle, the proverbial whistle, am
I correct?
Applicant
: that is correct.
Respondent’s representative
:
So, we can accept today that what motivated you to blow the whistle
was your anger for the non-payment, am I correct?
Applicant
: Yes, I didn’t
get my salary, and I phoned the FSB, and I told them what was
happening in the company.’
[36]
Clearly, cannot be faulted in concluding that the circumstances which
led to the first dismissal and then none payment of her
salary and
leave days led to the applicant approaching the FSB. Therefore,
vindictiveness which can be classified as the personal
gain or “
malice
or the presence of an ulterior motive aimed at self advancement or
revenge
”
was the reason for the disclosure. The LAC in
SA
Municipality Workers Union National Fund v Arbuthnot
[20]
held that,
‘
Good faith, in my view, entails
in part that there should be no ulterior motive, revenge or malice in
making the disclosure. It
is common cause that the respondent did not
claim protected disclosure at the disciplinary hearing and that her
reliance on protected
disclosure only surfaced for the first time
during the proceedings before the Labour Court.
The
inference that the appellant wants this Court to draw is that the
reliance on the protected nature of the disclosure was more
of an
afterthought
, in an
attempt to downplay the tendency of the respondent to disregard the
employer’s instruction….
[21]
And
“
In addition, it is
also a requirement that the party making the disclosure intends
thereby for the wrong disclosed to be remedied,
or addressed, in some
way
.’
[22]
[37]
In
casu
,
applying the latter principle
[23]
,
the applicant confirmed that the only time she knew about the PDA was
when she approached a company called clientèle
reporting the dismissal then the official there told her that the
disclosure was a protected one, and she did not use this defence
during the disciplinary hearing. The applicant could not explain her
intention of making a disclosure to the FSB, as Mr Van Graan
repeatedly asked the applicant about her intention to report the
respondent to the FSB and she confirmed that she was vindictive.
Based on above I, therefore, conclude that the applicant failed to
meet the requirement found in ss 9(1)(b) of PDA which is “who
does not make the disclosure for purposes of personal gain”, as
clearly the evidence indicates that she made the disclosure
in bad
faith as her motive was not to remedy the wrong but motivated by
bitterness as a result of what is stated above.
Costs
[38]
I am aware that subsections 162(1) and (2) of the LRA give this Court
a discretion to make a costs order. In terms of ss (2)(a),
cost order
may be made against a party who referred a dispute in this Court
which such matter should have been referred to arbitration.
This was
a borderline manner in respect of jurisdiction, and the applicant
testified that she came in this Court following advice
from clientèle
as she was not aware that the disclosure could have been covered
under the PDA. I, therefore, find that the
law and fairness dictate
that there should be no costs order.
[39]
Mr Dzimba asked that in case I find that this Court has no
jurisdiction, I should refer the dispute to the CCMA for arbitration.
I have taken into account that the respondent advised this Court that
the applicant was dismissed for releasing confidential information
to
the third party and that no evidence was led in respect of that, as
provisions of ss 187(1)(h) dispute were the focus.
[40]
In the premises, I make the following order:
Order
1. The applicant’s
dismissal was not automatically unfair.
2. The applicant’s
dismissal relating to misconduct, in terms of section 158(2)(a) of
the LRA is stayed and is referred to
the CCMA for arbitration.
3. There is no order as
to costs.
_______________________
S
Mabaso
Acting Judge of the
Labour Court of South Africa
Appearances
For
the applicants: Adv Dzimba
Instructed
by: Kobras Attorneys
For
the respondent: Adv Van Graan SC
Instructed
by :Jan Kemp Nel Attorney
[1]
-As
then he was. Writing for the Court.
[2]
[2012] 12 BLLR 1246 (LAC).
[3]
Ibid, para 35. See also
Communication
Workers Union v Mobile Telephone Network (Pty) Ltd and another
ZALC 59 (26 May 2003) (2003) ,24 ILJ 1670 (LC) (“MTN”)
at para 21, where
Van
Niekerk AJ
of this Court
said: 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
requirements of good
faith. (Own emphasis)
[4]
in terms of ss 191(5)(b)(i) read ss with 187(1)(h) of the LRA 66 of
1995, as amended.
[5]
66 of 1995,
as amended (the LRA)
[6]
Ibid 5, page 5.
[7]
(5) If a council or a commissioner has certified that the dispute
remains unresolved, or if 30 days or any further period as
agreed
between the parties have expired since the council or the Commission
received the referral and the dispute remains unresolved—
(a)the council or the Commission must
arbitrate the dispute at the request of the employee if—
(i)the employee has alleged that the
reason for dismissal is related to the employee’s conduct or
capacity, unless paragraph
(b) (iii) applies;
[8]
Section186(1)(e) of the LRA
[9]
Ss 37 (1)(c)(i) of BCEA: 37. Notice of termination of
employment. — (1) Subject to section 38, a contract of
employment terminable at the instance of a party to the contract may
be terminated only on notice of not less than—
(a)…
(b)…;
(c) four weeks, if the employee—
(i)has been employed for one year or
more…”
[10]
The FSB investigated and made its findings.
[11]
See:
Garnevska v DBT
Technologies (Pty) Ltd t/a DB Thermal
(JS581/15) [2018] ZALCJHB 23 (26 January 2018), at paras 32 -36.
[12]
Own emphasis
[13]
Kroukam v SA Airlink (Pty)
Limited
(2005) 12 BLLR
1172
(LAC), at para 28.
[14]
Govan v Skidmore
[1952] 1 All SA 54 (N)
[15]
8. Protected disclosure to certain persons or bodies.—(1)
Any disclosure made in good faith to—
(a)…
(b)…, or
(c)a person or body prescribed for
purposes of this section; and
in respect of which the employee or
worker concerned reasonably believes that—
(i)the relevant impropriety falls
within any description of matters which, in the ordinary course are
dealt with by the person
or body concerned; and
(ii)the information disclosed, and
any allegation contained in it, are substantially true,
[16]
(2) The conditions referred to in subsection (1) (i) are—
(a) that at the time the employee or
worker who makes the disclosure has reason to believe that he or she
will be subjected to
an occupational detriment if he or she makes a
disclosure to his or her employer in accordance with section 6;
(b) that, in a case where no person
or body is prescribed for the purposes of section 8 in relation to
the relevant impropriety,
the employee or worker making the
disclosure has reason to believe that it is likely that evidence
relating to the impropriety
will be concealed or destroyed if he or
she makes the disclosure to his or her employer;
(c) that the employee or worker
making the disclosure has previously made a disclosure of
substantially the same information to—
(i) his or her employer; or
(ii) a person or body referred to in
section 8,
in respect of which no action was
taken within a reasonable period after the disclosure; or
(d) that the impropriety is of an
exceptionally serious nature.
(3)
In determining for the purposes of subsection (1) (ii) whether it is
reasonable for the employee or worker to make the disclosure,
consideration must be given to—
(a) the identity of the person to
whom the disclosure is made;
(b) the seriousness of the
impropriety;
(c) whether the impropriety is
continuing or is likely to occur in the future;
(d) whether the disclosure is made in
breach of a duty of confidentiality of the employer towards any
other person;
(e) in a case falling within
subsection (2) (c), any action which the employer or the person or
body to whom the disclosure was
made, has taken, or might reasonably
be expected to have taken, as a result of the previous disclosure;
(f) in a case falling within
subsection (2) (c) (i), whether in making the disclosure to the
employer the employee or worker complied
with any procedure which
was authorised by the employer; and
(g) the public interest.
(4)
For the purposes of this section a subsequent disclosure may be
regarded as a disclosure of substantially the same information
referred to in subsection (2) (c) where such subsequent disclosure
extends to information concerning an action taken or not taken
by
any person as a result of the previous disclosure.
[17]
SA Municipality Workers
Union National Fund v Arbuthnot
(2014) 25 ILJ 2434 (LAC), at para 15.
[18]
Mbethe v United Manganese
of Kalahari (Pty) Limited
(503/2016)
[2017] ZASCA 67
;
2017 (6) SA 409
(SCA) (30 May 2017).
[19]
.See
fn 3 above.
[20]
(2014) 35 ILJ 2434 (LAC)
[21]
Ibid, para 23
[22]
Ibid, para 25
[23]
Arbuthnot
supra.