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[2018] ZALCD 11
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Baxter v Minster of Justice and Correctional Services and Others (D1171/2014) [2018] ZALCD 11 (1 August 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE NO.:
D1171/2014
Not Reportable
In the
matter between:
JAMES
PATRICK BAXTER
Applicant
and
THE
MINISTER OF JUSTICE AND
CORRECTIONAL
SERVICES
First Respondent
THE
ACTING NATIONAL COMMISSIONER OF
THE
DEPARTMENT OF CORRECTIONAL SERVICES
Second Respondent
THE
REGIONAL COMMISSIONER OF THE
DEPARTMENT
OF CORRECTIONAL SERVICES FOR
THE
REGION OF KWAZULU-NATAL
Third Respondent
Heard:
23 March 2018
Delivered:
01 August 2018
Summary
:
Dismissal - alleged to constitute protected disclosure –
disclosure to be made
bona
fide
with no ulterior
motives – employee had ulterior motive – disclosure not
protected – on alternative claim Court
already seized with
matter – expedient to consider fairness of dismissal –
dismissal found to be substantively and
procedurally fair.
JUDGMENT
Cele
J
Introduction
[1] This is a claim in
which the Applicant, Mr Baxter, contends that his dismissal was
automatically unfair as envisaged in terms
of Section 187(1)(h) of
the Labour Relations Act
[1]
in
that, it constituted an occupational detriment as defined in Section
1 of the Protected Disclosures Act
[2]
(“PDA”). In the alternative, he contends that the
dismissal was substantively and procedurally unfair. Both claims
are
opposed by the Respondent on the basis that there is no protected
disclosure made by Mr Baxter in terms of which he would be
entitled
to the relief sought. In respect of the alternative claim it was
contended that this Court does not have jurisdiction
to determine Mr
Baxter’s claim.
Factual Background
[2] Mr Baxter commenced
his employment with the Department of Correctional Services, the
Department, on 17 November 1986 as a Warder
at St Albans Prison, Port
Elizabeth. He was appointed the Area Commissioner: Kokstad Management
Area with the C-Max Prison, as
from 1 January 2007. Shortly after his
appointment as Area Commissioner in Kwazulu-Natal (KZN) Mr Mnikelwa
Nxele, the Third Respondent,
was appointed to the post of Regional
Commissioner, and thus became Mr Baxter’s immediate superior.
The two had previously
known each other and, at that point, there was
a good relationship between them. Of relevance to this matter, in
2013 the following
persons were appointed in the positions as
indicated:
2.1
Mr AMF Mnguni as Regional Co-Ordinator: Security;
2.2
Mr Mathenjwa as Head Correctional Centre: Ebhongweni;
2.3
Mr Mchunu as Area Co-Ordinator: Pietermaritzburg;
2.4
Mr Mbanjwa as Head Directional Centre: Serfontein and
2.5
Mr Mdlalose as Head Correctional Centre: Port Shepstone.
[3] The Kokstad
management area of Mr Baxter comprises of both Kokstad and Port
Shepstone and one or two other smaller facilities
in the area.
As part and parcel of Mr Baxter’s duties he was from time to
time placed on appointment panels to deal
with the appointment and
promotions of various officials within the department, including some
of the five hereinabove named. The
accepted practise was that, an
Area Commissioner had to sit in the panel if the appointment or
promotion to be made fell within
his or her area of administration.
An area Commissioner would also sit in a panel where appointments or
promotions fell outside
the area of his or her administration if such
appointments or promotions were of senior departmental officials.
[4] The Department
undertook various learnership programs through which candidates who
participated in them could thereafter be
employed by it. During April
2013 Mr Baxter’s daughter Ms Raneesha Baxter successfully
applied for one such learnership program.
Her appointment was
approved by the Acting Regional Commissioner on 15 January 2014.
According to Mr Nxele an adverse report was
given to him pertaining
to Mr Baxter’s behaviour in allegedly influencing the
appointment of his daughter.
[5] On 13 February 2014
Mr Nxele then decided to have the appointments for the learnership
program suspended pending the outcome
of an investigation which he
commissioned to be conducted in relation thereto. On the following
day, 14 February 2014 Mr Baxter
sent a telefax to Mr Nxele requesting
an investigation to be conducted against the entire learnership
program as well as against
the 2013 appointments of the five
officials earlier referred to. Mr Baxter further addressed another
letter to Mr Nxele in which
he requested an audience with the Acting
National Commissioner and the Minister of the Department about
corruption and abuse of
power by Mr Nxele.
[6] On 18 February 2014
Mr Nxele issued Mr Baxter with a letter, contemplating to suspend
him. And on 20 February 2014 Mr Baxter
received a suspension letter
with allegations that he interfered with the recruitment processes
for the learnership of Kokstad
Management Area by talking to panel
members for the shortlisting and appointment of his daughter and the
further reasons for the
contemplated suspension were specifically
stated to be:
6.1
Mr Baxter’s allegations in respect of the Third Respondent,
6.2
His request for an investigation and audience with the Acting
National Commissioner and
the Minister; and
6.3
The allegations made to the Acting National Commissioner on the
weekend of 15/ 16 February
2014.
[7] On 24 April 2014 the
Department served Mr Baxter with a notice to attend an internal
disciplinary enquiry. Mr Baxter was subsequently
found guilty of the
five counts of misconduct he was charged with and was dismissed on 1
December 2014. The five charges were described
as:
“
COUNT 1
Whilst employed in Kokstad Management
Area as Area Commissioner, you are alleged to have contravened SMS
Handbook Chapter 7, annexure
A, paragraph (6) in that during the
learnership intake 2013/ 2014 you compromised the integrity and
credibility of the selection
process by asking the Chairperson of
Kokstad Management Area Selection Panel Mr Khumalo BC if he saw the
forms of your daughter,
which question conveyed the innuendo that she
should be appointed whereby you prejudiced the administration,
discipline or efficiency
of the Department.
COUNT 2
Whilst employed in Kokstad Management
Area as Commissioner, you are alleged to have contravened SMS
Handbook Chapter 7 1/2006 annexure
A, paragraph (27) in that around
the o9 March 2014 it is alleged that you refuse to obey security
regulations by refusing to open
your car boot and be searched as
required by the correctional services B-Order, 3.14.
COUNT 3
Whilst employed in Kokstad Management
Area as Area Commissioner, you are alleged to have contravened SMS
Handbook Chapter 7 1/2006
annexure A, paragraph (10) in that around
the 22 February 2014 you violated your suspension condition by
communicating with a Whatsapp
with official Zikalala SN and even
threatening her to summon her to court.
COUNT 4
Whilst employed in Kokstad Management
Area as Area Commissioner, you are alleged to have contravened SMS
Handbook Chapter 7 1/2006
annexure A, paragraph (1) and that around
the 19 February 2014 you failed to submit sick leave within the five
days period as stipulated
by the determination and directive on leave
of absence in the public service.
COUNT 5
Whilst employed in Kokstad Management
Area as Area Commissioner, you are alleged to have contravened SMS
Handbook Chapter 7 1/2006
annexure A, paragraph (28) in that around
the 20 February 2014 you showed a document to Mr Patrick Zibuyele
Marau which you claim
that the said official challenged the
Department of Correctional Services for not appointing him which was
misrepresentation because
that was not in line with what was
recommended by the Committee.”
[8] Mr Baxter referred a
dismissal dispute to the bargaining council wherein he contended that
his suspension, disciplinary process
and dismissal constituted
occupational detriment as defined in section 1 of the PDA and that
his dismissal was automatically unfair
as envisaged in section 187
(1) (h) of the LRA. When the dispute could not be resolved at
conciliation, he referred it to this
Court by means of the statement
of case. The Respondent filed its statement of defence, averring that
Mr Baxter was simply one
of a number of its employees who were
subjected to disciplinary proceedings arising from allegations of
serious misconduct, which
had the effect of destroying the employment
relationship, in which they were found guilty.
Evidence
Applicant’s
version
[9] Mr Baxter bore the
onus to prove the allegations constituting protected disclosure he
relied on. As dismissal was common cause
the Respondents bore the
onus to prove that dismissal was substantively and procedurally fair
He testified and then called one
witness Dr Mdletshe. The Respondent
called three witnesses being Mr Diko, Ms Sibutha and Mr Nxele. The
allegations on the protected
disclosure appear to take two forms
namely, those made to the Acting National Commissioner, Ms Jolingana
about Mr Nxele and those
made to Mr Nxele about other staff members.
The evidence in chief of Mr Baxter about what he told Ms Jolingana,
as he was led by
his Counsel Mr Schuman is briefly that:
“
Now I want you to concentrate
on Point 4, did you make allegations to the National Commissioner as
is alleged in that paragraph?
--- Yes, I did.
M’Lord, the ANC referred to in this paragraph refers to the
African National Congress.
Oh I thought it was Acting National
Commissioned. --- Yes, but indeed on the question this is
true that I contacted
Ms Jolengana over that period as indicated
earlier.
What allegations did you bring to her
attention, these numerous allegations that he refers to can you tell
us what that was about?
--- Amongst others it was the issues
that I testified about yesterday the irregularities in respect of
promotions, irregularities
in respect of appointments, that was the
basis of it and that the suspension of Kokstad learnership and that
type, that’s
basically the allegations that I made.
Can you just set out everything that
you told her, can you list for us all the matters which you mentioned
to her on that occasion
or over that weekend as alleged? ---
I cannot precisely say whether I mentioned the specific names to her,
unless I
can refresh my memory with the WhatsApps, but I specifically
mentioned the promotions of the people that I testified about, mostly
also about the learnership programme and previous learnership
programmes. One of it specifically is the learnership programme
where a relative of Mr Nxele was found not to have been on the list
and he stopped the process. This could have been either
in
telephone calls or it could have been in WhatsApps and sms’s
but I remember Busisiwe Dlamini is one of the specifics that
I
mentioned to Ms Jolengana. I also spoke about the withdrawal of
20 learners at the Durban learnership programme to be sacrificed
for
people whose name was given as a list to the chairperson, whereas the
process was almost finished with the learners of Durban
and then they
replaced those members with the names that they wanted.
Can you tell us what exactly occurred
about Busisiwe Dlamini? --- At that time I was still working at
the Acting Deputy Regional
Commissioner in the Regional Office and we
had a recruitment drive. Then because the Regional Commissioner
wanted to be personally
involved he instructed us not to send the
approval of the learnership programmes directed to headquarters he
wants to see it himself.
He was in a meeting in Pretoria at the
time so we had to send these documents to him where he was.
After some time he called
me back and he said that those things are
going nowhere the whole process must be stopped because there are
certain names that
are not there. He then confided in me to
tell me that Busisiwe’s name was not there and at that time
Busisiwe was working
in his office on a so-called internship
programme.
CELE J What did he say
about Busisiwe’s name? --- Her name was not on the list.
He complained about that? ---
She was definitely not on the list, she was not even on the cross
list for that.
So he was complaining about the
absence of her name? --- That’s correct.
MR SCHUMANN And she was in
his office on an internship, do you know who she was? --- I
recall that, I must apologise
I cannot precisely say how the family
structure works but at the time I heard it as to say that Busisiwe is
the daughter of his
mother’s sister but I know, M’Lord,
pardon me it is so much like this is my small cousin or small sister
or small nephew
I don’t specifically know how it is termed but
I even went to the funeral of Busisiwe’s mother in Richmond so
I know
that for a fact. She was on a so-called learnership
internship programme. I call it the so-called because she was
one
of the only ones that didn’t have a qualification and an
internship programme it’s unlike a learnership programme or
a
voluntarily programme it is a programme that is designed specifically
for graduates, people with either a diploma or a degree
to gain
training or experience in the workplace. If my memory serves me
correctly, even up today because she works at Kokstad
at some stage
she is still busy with her studies and she worked in the office of
the Provincial Commissioner not in an office she
worked in his office
as a secretary.
When the Regional Commissioner
discovered that her name was not on the list of people approved for
the learnership programme what
did he do? --- He instructed me
to stop the process and I must tell the candidates they must start
over with it because he
believed that there was some other CV’s
or applications that was not collected.
Ultimately what happened? --- We
had to start the process over and Busisiwe happened to be one of the
learners that were appointed
in Kokstad management area.
Were you on the panel that appointed
her? --- No, I was not on the panel, strangely so that Busisiwe
was one of the only people
outside of Kokstad that was interviewed by
Sibutha and the panel consisting of the panel that was for Kokstad
but not with the
same chairperson.
She was interviewed by a different
panel? --- She was interviewed by a different chairperson, the
other panellists were the
same panellists.”
[10] The issues that Mr
Baxter testified about were the irregularities in respect of
promotions, appointments and the suspension
of Kokstad learnership
program. I am indebted to Mr Schuman for Mr Baxter in the well laid
out summary of this evidence.
The appointment of Mr
Mnguni
Mr Baxter’s
version
:
[11] Mr Baxter testified
that in May 2013, he had participated as a member of the panel who
had interviewed candidates for the post
of Regional Co-ordinator:
Security, Kwazulu-Natal Region. After scoring the candidates, one Mr
Shane Pillay achieved the highest
score and was recommended by the
interview panel for the post. Mr PZ Marau was the second recommended
candidate and Mr MAF Mnguni
was in third place. The panel members
signed off an interview schedule form, as per the normal process,
reflecting the scoring
and panel’s recommendations. However,
subsequent to the interview process Mr Baxter was surprised to
discover that neither
Mr Pillay nor Mr Marau had been appointed to
the post, which had been given to Mr Mnguni, the third placed
candidate. Shortly thereafter
he had communicated his concerns to Mr
Nxele at a function at the Karridene Hotel. Mr Nxele had simply
replied that Mr Baxter should
inform Mr Pillay not to worry because
there was another position which Mr Nxele had earmarked for him.
[12] Mr Pillay referred a
grievance and unfair labour practice dispute for adjudication and, in
the course of those proceedings
produced documents which he provided
to Mr Baxter. These documents included the interview schedule signed
by the panellists
[3]
and a
document purporting to be the interview minutes and recommendations
of the panel.
[4]
The panel
comments and recommendations in the memorandum corresponded with the
signed off interview schedule form and recommended
Pillay as the
preferred candidate.
[13] Mr Baxter testified
that Mr Pillay’s memorandum coincided exactly with the
discussions and recommendations of the interview
panel of which he
was a member. Mr Mnguni had been appointed to the post in terms of
another memorandum purporting to contain the
discussions and
recommendations of the interview panel.
[5]
This memorandum differed significantly from Mr Pillay’s
memorandum both in respect of some of the comments relating to the
candidates and, most significantly in respect of the alleged
recommendations of the interview panel. Mr Baxter said that, the
document in terms of which Mr Mnguni had been appointed falsely
represented the discussions and recommendations of the interview
panel. When the official green files containing the departmental
records of the various appointment processes were eventually produced
by the Department, the document at page 43A of Exhibit D was
discovered. This document (the official interview sheet signed off
by
the members of the panel as contained in the Department’s file)
corresponds exactly with the document at page 43 (emanating
from
Shane Pillay), confirming both the authenticity of the Pillay
documents and the correctness of Mr Baxter’s version.
Mr Baxter
contended that in the circumstances, there could be no doubt that the
memorandum recommending Mr Mnguni to the post was
a forgery.
[14] Mr Baxter testified
that, while Mr Nxele as the Regional Commissioner was not bound to
follow the recommendations of the interview
panel, he was required to
fully justify any departure from its recommendations in writing. He
could not alter the recommendations
of the panel to justify the
appointment of the third place candidate.
Respondents’
version:
[15] Mr Nxele admitted
having received a memorandum which recommended the appointment of Mr
Mnguni. He decided to support the recommendation
by signing the
memorandum, thus appointing Mr Mnguni against the post. The
recommendation was brought to Mr Nxele bearing signatures,
inter
alia, of the Chairperson of the panel, Mr Davids signed on 24 June
2013, Ms Mchunu being the Custodian of the records for
the Human
Resources (HR) of the Regional Office signed on 27 May 2013 and Mr
Wiggle, the Acting Regional Commissioner: HR: Support
Services signed
on 28 May 2013. He denied committing any wrong doing by appointing Mr
Mnguni. He denied having met Mr Baxter at
Karridene Hotel in July
2013 where they could have discussed the concerns of Mr Baxter about
Mr Mnguni’s appointment. He
said that in July 2013 he was in
the United States of America. He had recently been married in that
year.
[16] A number of
positions were advertised and around the first week of December 2013,
groups of panellists were called to the Regional
Office to conduct
interviews for those positions, which included several Deputy
Directors’ posts and Heads of Centre positions.
Mr Baxter was
one of the members appointed to those panels. The process culminated
with the appointment of: Messrs M H Mdlalose,
T M Mathenjwa, D K
Mbanjwa and Mchunu.
The Appointment of Mr
M H Mdlalose
Applicant’s
version:
[17] Mr Mdlalose applied
for the position of Assistant Director, Head of Correctional Centre
in Kwazulu-Natal, Port Shepstone. In
terms of the requirement for the
post, Applicants were required to have a relevant Bachelor’s
degree or National Diploma
and seven years relevant experience in a
supervisory post. As Mr Baxter was the person to whom the incumbent
would report, it was
the practice for the area head to be on the
panel and he or she would normally chair it. The Third Respondent
authorised the appointment
of panel members and Mr Baxter was not
included in the panel but Ms Nombuso Mkhize was the chair.
[18] Mr Baxter testified
that, the Third Respondent had informed him and others that Ms Mkhize
was his girlfriend. Mr Baxter was
also aware of a personal
relationship between the Third Respondent and Mr Mdlalose which he
inferred from the fact that the Mr
Mdlalose had been an active
participant at the Third Respondent’s wedding ceremony in 2013,
to which Mr Baxter was an invited
guest.
[19] Referring to the
curriculum vitae (CV) of Mr Mdlalose Mr Baxter said that Mr Mdlalose
held only a Teacher’s Diploma from
the Eshowe College of
Education in biology and mathematics. He stated that while a
Teacher’s Diploma might be relevant to
a teaching position
within the Department, it bore no relevance to a Head of Centre
position. In addition, Mr Mdlalose did not
have seven years of
supervisory experience relevant to the position. Yet, notwithstanding
the above, Mdlalose was the successful
candidate. He said that Mr
Mdlalose should have been excluded during the shortlisting process
because he did not meet the requirements
for the post. Mr Baxter
confirmed that it was possible for people to be appointed to a post
despite not possessing the relevant
qualification, if it could be
motivated on the basis that the candidate nevertheless possessed
scarce skills and there were no
other more suitable candidates for
the position. Accord to Mr Mdlalose’s CV, he possessed no such
scarce skills and there
were other eminently qualified and suitable
candidates. However, Mr Baxter conceded that he was appointed to six
or seven other
panels at the time which dealt with more senior
appointments.
Respondents ‘version:
[20] Mr Nxele’s
evidence was that Ms Mkhize was qualified to chair the panel as she
was a Deputy Director acting in the post
of a Director. Mr
Nxele said that he and Ms Mkhize were romantically involved more than
20 years prior to her chairing the
panel. Mr Nxele said that he
simply approved the recommendation of the panel. Mr Baxter did not
take issue with any of the other
panel members who recommended Mr
Mdlalose for the post nor could he dispute that Mr Mdlalose scored
the highest in the interview.
The Appointment of Mr
Mathenjwa
Mr Baxter’s
version:
[21] Mr Mathenjwa applied
for the position of Head of Centre, Ebongweni, the C-Max Prison in
Kokstad, being the “Closed Maximum
Centre”, that is, the
highest security prison in the country which had its own policies and
procedures which differed from
that of other prisons. Mr Baxter said
that he was part of the shortlisting panel which had recommended six
shortlisted candidates
for the approval of Mr Nxele who did not
approve the list, but instead he removed three of the shortlisted
candidates and requested
the panel to relook at other candidates.
When cross-examined Mr Baxter said that he was told by Mr Nxele to
“look for Mr
Mathenjwa”. Mr Mathenjwa was included as one
of the shortlisted candidates in the second round short listing. Mr
Baxter did
not serve on the reconvened shortlisting panel but was
present during the interviews of those candidates. He scored Mr
Mathenjwa
4, 3, 3 and 3 for the four questions he was required to
answer at the interview, but other panellists had scored him much
higher,
including giving him a full 5 out of 5 in respect of some of
the questions. Mr Baxter explained that there was a measure of
objectivity
to the process as the questions and expected answers were
relatively standard and it was strange that other panellists could
score
Mr Mathenjwa 5 out of 5 when his response, according to Mr
Baxter, warranted only a 3.
[22] Moreover, Mr Baxter
said that Mr Mathenjwa did not hold a Degree in Behavioural Sciences
as required by the post and had no
relevant experience at a C-Max
institution. Nevertheless, he was appointed to the post.
Respondents’
version:
[23] The Respondent’s
version is that Mr Baxter did not testify in his evidence in chief
that Mr Nxele told him to look for
Mr Mathenjwa and that it was
improbable that he would omit to mention such an instruction in his
evidence in chief if it was ever
given. Mathenjwa was included as one
of the shortlisted candidates. Despite being part of the original
shortlisting panel, Mr Baxter
testified that he could not explain how
Mathenjwa ended up being included in the shortlist, said the
Respondent. Even if there
was such an instruction, which was denied,
Mr Baxter did not give effect to it as he was unable to explain how
Mr Mathenjwa’s
name was included on the second shortlist. Mr
Nxele did not approve of Messrs Diko, Godden and Mbono and directed
the “panel
to look at other candidates.” Mr Mathenjwa’s
name was not mentioned on the documents. The second short list did
not
conform to Mr Nxele’s directive as included certain names
and excluded others, considered by the panel. It was also not
disputed
that the three names on the initial shortlist which Mr Nxele
did not approve belonged to Senior Correctional Officers who
were much junior to Mr Mathenjwa who was the only candidate from
those interviewed, who had previous experience as Head of Centre.
The Appointment of Mr
D K Mbanjwa.
Applicant’s
version:
[24] Mr Baxter and Dr
Mdletshe who was the Area Commissioner: Pietermaritzburg, were
members of the panel in respect of the position
of Head of
Correctional Centre, Seefontein. A shortlist had been drawn up and
sent to Mr Nxele who, according to the Applicant,
then instructed
that Mr Mbanjwa “cannot be eliminated”. His name
subsequently appeared on both the shortlist and the
“gross
list” which contained the names and the information of every
person who had applied for the position. The evidence
of both Mr
Baxter and Dr Mdletshe was that they remembered clearly that Mr
Mbanjwa’s name had not appeared on the initial
gross list and
that he had not, therefore, applied for the position. They said that
Mr Nxele was corrupt because he knew that Mr
Mbanjwa did not apply
for the post but ultimately appointed him to the post. They further
said that Mr Mbanjwa did not have the
necessary qualification and,
although he had been acting in the post, this was not enough to
overcome his lack of qualification.
Respondents ‘version
:
[25] Both Mdletshe and Mr
Baxter were unable to dispute that Mbanjwa’s application was
received before the closing date and
that his name appeared in the
correct alphabetical order on the gross list. Neither one of them was
able to produce the gross list
which allegedly did not feature
Mbanjwa’s name in support of their contentions.
[26] Mr Baxter and Dr
Mdletshe conceded that they scored Mr Mbanjwa very high and that he
was the best performing candidate at the
interviews. They
unanimously and strongly recommended him for the post. Mr Baxter
conceded that none of the panel members
expressed any reservations
about the recommendation in the recommendation which served before Mr
Nxele and which was ultimately
approved by him. Mr Baxter conceded
that he did not disclose to Ms Jolingana that he actually recommended
Mr Mbanjwa for appointment.
Mr Baxter conceded that he never spoke to
Mr Nxele about Mr Mbanjwa and only mentioned him in the WhatsApp
messages on 14 February
2014. In seeking to excuse his own role in Mr
Mbanjwa’s appointment, Mr Baxter stated that he was then also a
party to the
corruption. It was contended that Mr Baxter failed to
establish that Mr Nxele inserted Mr Mbanjwa’s name on the
gross
list after the fact and was accordingly guilty of corruption.
Mr Baxter’s disclosure to Ms Jolingana about Mr Mbanjwa was
said to be patently untrue as he had had sight of the gross list
which featured his name prior to making the disclosure.
[27] The
cross-examination of Mr Nxele was confined to Mr Mbanjwa’s
qualifications. This was said to be clearly an afterthought
and
sought to reduce the complaint to one of an unfair labour practice
dispute. In the event that there were genuine misgivings
about
his qualifications, it was incumbent upon the panel to record this in
the recommendation. Mr Nxele’s evidence was that
Mbanjwa met
the requirements for the post and his suitability was confirmed by
the recommendations of the panel which he accepted.
The
averment made was that, to the extent that Mr Baxter and Dr Mdletshe
sought to rely on comments made by Mr Davids in relation
to Mr
Mbanjwa, such evidence fell to be disregarded as hearsay.
The appointment of Mr
Mchunu
Applicant’s
version:
[28] Mr Baxter was
initially appointed to the panel in respect of the position applied
for by Mr Mchunu but had recused himself
as Mr Baxter’s wife
had applied for the same position. Mr Baxter referred to the
interview documentation provided in the
green file, saying that there
was nothing to justify the appointment of Mr Mchunu ahead of the
other candidates. He noted that
Mr Mchunu’s score sheets were
missing from the documentation. In regard to the process generally,
Mr Baxter testified that
it had been clearly unsatisfactory with
various people excluded from shortlists and others added. Invariably,
he said, those persons
who were added to shortlists when they should
not have been ended up being appointed to the post. The majority of
such candidates
were from the Empangeni area where Mr Nxele had
previously served as the Area Commissioner.
Respondent’s
version:
[29] It was pointed out
that Mr Baxter was not a member of the panel that interviewed Mr
Mchunu and his evidence in respect of this
appointment was therefore
hearsay and carried no evidentiary value. Mr Baxter conceded in any
event that he did not mention alleged
irregularities related to Mr
Mchunu to Mr Nxele. Mr Baxter conceded that he could not state in
what respect Mr Nxele was corrupt
in relation to Mr Mchunu other than
the fact that he signed off on the appointment. Mr Baxter’s
evidence on Mr Mchunu must
in any event be viewed against the
backdrop that his wife applied for the same post and was not
shortlisted. Mr Baxter attributed
this to Mr Nxele. Dr
Mdletshe’s evidence was also limited. Although he was a member
of the panel, he was not present during
Mr Mchunu’s interview
and was unable to give any evidence about his performance and how he
was scored by the panel.
[30] His complaint
centred on the fact that he was excluded from the final
recommendation. It was wrong of the chair of the panel
to agree that
Dr Mdletshe would be part of the final panel to consider the
recommendation and thereafter to proceed without him.
However, it
might have later become clear that he could have added nothing to
such discussion in circumstances where he did not
interview Mr
Mchunu. Dr Mdletshe’s evidence pointed to alleged
irregularities in the process adopted by other panel members.
There was no evidence that Mr Nxele was involved in those events or
that he had knowledge thereof. Dr Mdletshe made extensive reference
to statements attributed to Messrs Davids and Mchunu. They were
not called as witnesses.
Ms Busisiwe Dlamini
and Mr Ngubo
Applicant’s
version:
[31] In his notice of an
application to amend the citation of the parties, in answer to a
point taken by the Respondent in the statement
of defence, Mr Baxter
included further particulars in which he then for the first time made
reference to Ms Dlamini and Mr Russell
Ngubo. Mr Baxter said that Mr
Nxele had stopped the entire 2011/2012 learnership program when he
discovered that Ms Dlamini had
not been appointed to the learnership
program. The selection process then recommenced Ms Dlamini and she
was placed into the program.
Mr Baxter said that he handed to Ms
Jolingana copies of documents of Ms Dlamini’s application for
the learnership program
wherein she had indicated, in her CV, that
she was working in the Regional Commissioner’s office. Mr
Baxter said that it
was irregular of Mr Nxele to allow her to work
with him and that he should have referred a matter of the employment
of a close
relative of his to the Acting National Commissioner. He
testified that Ms Dlamini did not qualify for the internship, she was
not
from the locality, which was a requirement and that the
Chairperson of that panel, Ms Sibutha, was not qualified to chair
it.
Mr Baxter stated that it was his duty, at the time in 2011,
to check all learnership recommendations before these were processed
to the Regional Commissioner’s office. He said that he checked
them and found an irregularity.
[32] In respect of Mr
Ngubo, Mr Baxter further said that Mr Nxele allowed Mr Ngubo, a
politically influential prisoner, certain
extraordinary privileges
including the transfer of a departmental official from the prison at
Ngubo’s instance.
Respondents’
version:
[33] Mr Nxele’s
evidence was that he found Ms Dlamini already working at the regional
office when he arrived to assume his
duties. He therefore had nothing
to do with her employment. The Respondent said that it was strange
that Mr Baxter found an irregularity
in the learnership program but
took three years to report it. The Respondent said that it was only
once he had “stopped the
processes involving the daughter of Mr
Baxter, hell broke loose in that all kinds of things were said and
all kinds of insults
came from Mr Baxter.” Mr Baxter was said
to have acted with ulterior motive, maliciously and was bent on
revenge.
[34] In the case of Mr
Ngubo, an inmate serving a sentence of 25 years imprisonment, the
allegation was that Mr Ngubo knew in advance
that Mr Baxter was about
to be transferred from Kokstad to Sevontein and Mr Baxter then
inferred that Mr Ngubo was running
or managing the correctional
centre. In his evidence, Mr Nxele denied the allegations or
imputations against him by saying that
this was nothing but an
attempt to discredit him before Ms Jolingana.
Communications made by
Applicant to Mr Nxele.
[35] Exhibit D contains a
number of texted messages exchanged between Mr Baxter and Mr Nxele
starting on 6 December 2013 to 30 December
2013 and resuming on 13 to
14 February 2014. They were about Applicant’s concerns on what
he considered were irregular recommended
appointments of the staff
within and outside of his area of operation. He also complained of
the treatment received by his wife,
who having not been short listed
for a post, was however called to an interview venue, only to be
snubbed and not called into the
interview room. In respect of the
exchange of Monday 9 December 2013, Mr Nxele sent Mr Baxter a text
message in the following terms:
“
Patrick, I really want to
caution you this time about your travelling which has not been
sanction. It will seem lately you are very
loose and judging by
comments you make to even my support staff you either asking for
trouble if not challenging me and my authority.
I really don’t
need this but if it is the last thing we must have between us I will
comply.”
[36] On the morning of 30
December 2013 Mr Baxter received a belated birthday message from Mr
Nxele and his text message in response
states that, while Mr Baxter
did not blame Mr Nxele, at that point in time, people on the
interview panels had abused their status
at the expense of
hardworking and dedicated officials to foster their friendships. In
respect of the treatment meted out to his
wife he said that he would
not:
“
accept personal injustice to my
family and those I am privileged to lead”.
[37] On 13 February 2014
a series of text messages passed between Mr Baxter and Mr Nxele who
had promised that they would meet to
discuss the issues, including
that of Mr Mathenjwa, but the meeting had not occurred. The first
text from Mr Baxter reminded Mr
Nxele of the need to meet and
discuss, inter alia, the Mathenjwa issue. Mr Nxele’s response
proposed a meeting on the following
week. At 08h20 Mr Baxter again
texted Mr Nxele and he mentioned the incident in regard to his wife
and an issue relating to his
daughter, Raneesha who had applied for a
position in the Departmental Learnership Programme and had been
interviewed on 8 January
2014. At around this time she had received a
call to say that her application had been successful and she had been
accepted into
the programme. The program was subsequently stopped by
Mr Nxele.
Evaluation
[38] The main cause of
action relied upon by Mr Baxter is the infringement of the provisions
of the PDA. He averred that he made
various disclosures to the Second
and Third Respondents which constitute protected disclosures in terms
of Section 6(1)(a), Section
6(1)(b), and/or Section 9(1) read with
Section 9(2)(c)(i), of the PDA.
[39] To the extent
relevant in this application, section 1 of 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 the
information concerned shows or tends to show:
(a)
…..
(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; …”
[40] “Occupational
detriment” is likewise defined in Section 1 and includes
subjecting an employee to any disciplinary
action, dismissing,
suspending, demoting, harassing or intimidating an employee.
[41] When seen against
the definition, the complaint by Mr Baxter is that: upon Mr Baxter
disclosing to the Department that he had
a reason to believe that
there is conduct of an employee of the Department which shows, or
tends to show that that employee has
failed or is failing or is
likely to fail to comply with any legal obligation to which that
employee is subject to comply but the
Department has subjected Mr
Baxter to disciplinary action by suspending and thereafter dismissing
Mr Baxter. {My emphasis} The
complaint of Mr Baxter shall now be
examined in relation to such disclosure.
The appointment of Mr
Mnguni
[42] Effectively Mr
Baxter is saying a recommendation to appoint Mr Pillay was deviated
from (as a legal obligation) when a recommendation
to appoint Mr
Mnguni was generated and carried through to Mr Nxele. As Mr Baxter
disclosed this fact, he is then subjected to disciplinary
action
which finally led to his dismissal. Documentary evidence reveals
indeed that there is a recommendation made to appoint Mr
Pillay.
However, the evidence of such a deviation is murky. Mr Davids who was
the chair of the panel signed the recommendation
for the appointment
of Mr Mnguni. The evidence of Mr Davids was therefore very crucial in
informing Court why there was such a
deviation. The hearsay evidence
led by Mr Baxter about Mr Davids in this regards has no basis for its
admissibility. The result
is that this Court has not been informed
why there is this discrepancy of two contradictory recommendations.
The evidence of Mr
Baxter on how Mr Nxele undertook to appease Mr
Pillay with a junior appointment has its own challenges. The date
when such a discussion
took place remained unclear. The date of July
2014 was said to have been wrongly inserted by attorneys of Mr
Baxter. When it was
put to Mr Baxter that Mr Nxele was not in South
Africa in July 2013, given as a correct date, August 2013 was
resorted to. This
was against a firm denial by Mr Nxele that such a
meeting ever took place. Mr Baxter resorted to saying the records of
Karridene
Hotel, where the meeting was said to have taken place,
could be produced. No such records were produced. The evidence of Mr
Baxter
failed to reach a standard at which it would be favoured by
the probabilities of this matter.
[43] It cannot therefore
be said that Mr Baxter had a reason to believe that there was conduct
of an employee of the Department
which showed, or tended to show that
there was an employee who failed or was failing or was likely to fail
to comply with any legal
obligation to which that employee was
subject to comply. No alleged protected disclosure was therefore
proved to have been made.
The appointment of Mr
Mdlalose
[44] Mr Baxter’s
complaint was that he was not part of the panel; that Ms Mkhize was
not qualified to chair the panel and
that Mr Mdlalose did not have
qualifications for the post. Mr Baxter did concede in his evidence
that at the time, he was appointed
on seven other panels which then
dealt with more senior appointments. Ms Mkhize was a Deputy Director
and she acted as a Director.
She was accordingly qualified to chair
the panel as did Mr Baxter, as a Director. Mr Baxter could not
dispute that Mr Nxele and
Ms Mkhize were romantically involved some
twenty years before and that he found her already working at the
Regional Commissioner’s
office. In respect of qualifications
for Mr Mdlalose, the panel which interviewed him found him qualified
and most suitable for
the post. A Teachers Diploma was relevant to a
teaching post. A Head of Prison where there is teaching done could be
better suited
with this Diploma as a scarce skill. Mr Baxter was not
a member of the panel and thus he could not testify on the reasoning
behind
Mr Mdlalose being found to have met the set requirements. The
appointment of Mr Mdlalose went through various stages until it was
approved by Mr Nxele as the last functionary. No proper foundation
was laid by Mr Baxter for this Court to find that there is conduct
of
an employee of the Department which shows, or tends to show that any
employee failed or was failing or was likely to fail to
comply with
any legal obligation to which that employee was subject to comply.
Consequently, no alleged protected disclosure was
therefore proved to
have been made.
The appointment of Mr
Mathenjwa
[45] This is an instance
where the panel which included Mr Baxter short listed candidates some
of whom were not approved by Mr Nxele.
He instructed that other
candidates were to be looked for. However under cross examination Mr
Baxter then said that Mr Nxele told
him to look for Mr Mathenjwa.
Where and the circumstances under which this was said remain unclear.
He had not disclosed this in
evidence in chief. Yet Mr Baxter told Ms
Jolingana that some people were removed from the shortlist and Mr
Mathenjwa was pushed
in. Mr Baxter said that he did not know how Mr
Mathenjwa ended up being included in the shortlist. In his evidence
he did not carry
out the instruction given by Mr Nxele. His evidence
in this regard was clearly contradictory. On the generated documents
Mr Nxele
disapproved the shortlisting of Messrs Diko, Godden and
Mbono but he said that the panel was to look at other candidates
without
mentioning the names of Mr Mathenjwa. The final approved list
did not conform to Mr Nxele’s recommendations as the panel
excluded certain names and included others as panellists decided.
[46] I therefore conclude
that no proper foundation was laid by Mr Baxter for this Court to
find that there is conduct of an employee
of the Department which
shows, or tends to show that any employee failed or was failing or
was likely to fail to comply with any
legal obligation to which that
employee was subject to comply. Consequently, no alleged protected
disclosure was therefore proved
to have been made.
The appointment of Mr
Mbanjwa
[47] According to both Mr
Baxter and his witness Dr Mdletshe, Mr Mbanjwa’s name was not
included in the initial shortlist.
When that list was seen by Mr
Nxele, he instructed that Mr D K Mbanjwa “cannot be eliminated”
and his names then appeared
in the gross list with the names of all
applicants and in the shortlist. The alleged initial gross list was
never produced. Yet
the names of Mr Mbanjwa appeared in the
alphabetical gross list with a date stamp, suggesting that the
application was lodged on
time. The very Applicant who raised an
issue about Mr Mbanjwa scored Mr Mbanjwa very high as the best
performing candidate. Both
Dr Mdletshe and Mr Baxter strongly
recommended Mr Mbanjwa for the post. If it were true that Mr Baxter
was part of the corruption,
as he suggested in his evidence, he ought
to have given details of the corrupt activities in respect of when
and where the plan
was mooted. He did not. In the deliberations of
the panel Mr Baxter could have raised and recorded the issues of
concern instead
of giving a high score. Mr Mbanjwa had been acting in
the post for a considerable period of time. Any comments allegedly
made by
Mr Davids about Mr Mbanjwa remain hearsay evidence in respect
of which no foundation was laid for its acceptability.
[48] I find therefore
that there is no conduct of any employee of the Department which
shows, or tends to show that any employee
failed or was failing or
was likely to fail to comply with any legal obligation to which that
employee was subject to comply. Consequently,
no alleged protected
disclosure was therefore proved to have been made.
The appointment of Mr
Mchunu
[49] Mr Baxter was
initially appointed to the panel in respect of this position. He
recused himself as his wife applied for the
same position. He
therefore had a vested interest in this position. Dr Mdletshe was a
panel member and Mr Davids chaired it. As
the Mr Baxter conceded that
he did not mention alleged irregularities related to Mr Mchunu to Mr
Nxele and as Mr Baxter conceded
also that he could not state in what
respect Mr Nxele was corrupt in relation to Mr Mchunu other than the
fact that he signed off
on the appointment, this matter needs no
further examination except for comments already made in paragraph 30
hereof. No protected
disclosure was therefore proved to have been
made.
Ms Busisiwe Dlamini
and Mr Ngubo
[50] Mr Nxele’s
evidence that he found Ms Dlamini already working at the regional
office when he arrived to assume his duties
stood very much
unchallenged. In respect of the learnership program, I find indeed
that it was strange that Mr Baxter found an
irregularity in the
learnership program but took three years to report it. The Respondent
is correct to say it was only once the
processes involving the
daughter of Mr Baxter had been stopped that hell broke loose.
[51] In the case of Mr
Ngubo, the allegations were very sparse and far apart. They were more
of conclusions than assertions. Again,
no protected disclosure was
proved to have been made in respect of the two persons.
[52] The cancellation of
the learnership program involving the daughter of Mr Baxter and the
failure to short list and interview
the wife of Mr Baxter appear to
have been what infuriated Mr Baxter. He even declared that he would
not “
accept personal injustice to my family and those I am
privileged to lead.
” He displayed an attitude that he was
too senior to be subjected to the ordinary rules of the Department.
He refused to be
searched or to have his family members subjected to
ordinary prison regulations. He reached a stage in his career where
he thought
his team work would be constituted by those he wanted and
when other panellists differed from him, he cried foul. Clearly, if
his
wife had been appointed to the post she applied for and if the
learnership program of his daughter had not been cancelled, his
subtle interference notwithstanding, and if appointments in his area
were done according to his wishes, he would have been content.
[53] He left it
undisputed that Department officials such as the Minister, the
National Commissioner and the Regional Commissioner
were to be
searched upon entering the prison precincts. The search had nothing
to do with the status of an official but everything
to do with
protection necessary and distinctive of the prison environment which
is a high risk area. What Mr Baxter said upon discovering
the
cancellation of the learnership program is informative of his
attitude. He said: “
When it touches the very innocent child
I have to do what is expected of me as her father
.”
So the employment of her daughter by the Department was to him a high
priority. I note that part of the opening address
by Mr Schuman for
Mr Baxter is: the following:
“
At around the time that these
issues between the regional commissioner and Mr Baxter
were coming to a head she was removed
from the learnership programme,
and that, M'Lord, prompted certain further developments, and one of
those developments was that
Mr Baxter sent letters to both the
regional commissioner and to the acting national commissioner
requesting audiences and pointing
out the nature of the
irregularities complained of and others. M’Lord, it will
become apparent from the evidence that
prior to that point in time Mr
Baxter had hoped that by engaging with the regional commissioner he
would mend his ways and he would
cease this interference in the
appointments to positions which then had a direct impact on Mr Baxter
performing his job functions.”
[6]
[54] Disclosure is only
protected if it is made in good faith. Therefore to enjoy protection,
the employee must
bona
fide
have believed that the information disclosed was true. In the case
of
SA Municipal Workers Union National Fund v Arbuthnot
[7]
the Labour Appeal Court held that good faith requires that the
disclosure is made without ulterior motive, revenge or malice. The
court accepted that although
Arbuthnot
had reasonably believed that the information disclosed was
substantially true, it did not accept that the disclosure had been
made in good faith. It was held that the disclosure was not
protected.
[55] In the present
matter a conclusion is irresistible that whatever was disclosed to Ms
Jolingana and to Mr Nxele by Mr Baxter
was driven by ulterior motive,
revenge or malice. I therefore conclude that the provisions of the
PDA find no application in this
case.
Whether the dismissal
of Mr Baxter was substantively and procedurally fair
[56] In terms of section
191 (5) (a) of the Labour Relations Act, a dispute pertaining to the
dismissal of an employee ought to
be referred to arbitration. Due to
the fact that a dispute about the misconduct of the employee was
pleaded as an alternative claim
Court has now been seized with this
matter. As the statement of claim was filed in February 2015, the
amended section 158 (2) (b)
of the LRA is applicable and Court finds
it expedient to continue with these proceedings, instead of stopping
the proceedings and
refer the matter to start
de novo
before a
commissioner. All evidence which the parties wanted to be considered
was led during the trial which has stretched over
more than two
years.
[57] Mr Baxter was
charged with 5 counts of misconduct. He was found guilty of all five
but was acquitted only on the alternative
charge of count 5.
[58] Mr Baxter was
legally represented at the internal disciplinary hearing. His
attorney challenged the version put forth by witnesses
called by the
Department. When Mr Baxter was given a chance to testify, he declined
and so his version was never given under oath.
About this, the
Chairperson Advocate M B Matlejoane of the Pretoria Bar had this to
say:
“
In the circumstances of this
matter and in light of the findings that I have already made, the
fact that Mr Baxter did not testify
in order to give probative value
to the version that he put to the employer’s witnesses, it is
my finding that by his conduct,
Mr Baxter has caused the trust
relationship between himself and his employer to break down
irretrievably. He compounded the problem
by trying to justify his
actions rather than accept responsibility for where he had clearly
erred.
The charges of which Mr Baxter was
found guilty are of a serious nature. His position places a
particular responsibility on him
to act in a lawful, proper and
procedural manner. Senior officials like Mr Baxter are expected to
behave with impeccable moral
rectitude and he failed himself and his
employer in this instance.
[59] Ms Matlejoane found
the only appropriate sanction to be that of dismissal in respect of
counts: 1, 2. 4 and 5 but a final written
warning on count 3. It
remains unclear if dismissal is a sanction for each of the four
counts or it is the cumulative effect of
all four counts put
together. She did say though that the charges he was convicted of are
of a serious nature.
[60] During the trial
before me, evidence led was more about the contravention of the
provisions of the PDA and nothing really was
said about the
substantive and procedural fairness of the dismissal. In respect of
count four though, evidence demonstrated various
steps which were to
be taken at various intervals to ensure that a sick leave form was
submitted. The supervisor of the employee
had a role to play. The
evidence of the Applicant was that he submitted the sick leave form a
day after he was off sick to his
secretary who was to forward it to
the Regional Commissioner, as a supervisor. The transmission appears
to have incomplete. It
remained common cause that Mr Nxele did
nothing to ensure compliance with the set procedure. I am unable to
find the bases on which
Mr Baxter was found guilty of this
infraction. The worst that could happen was to grant him leave
without pay. Mr Baxter should
have been found not guilty of this
charge. As a passing remark, even if he were guilty, it is such a
petty misconduct as to attract
only a written warning at first
transgression.
[61] I must agree with Ms
Matlejoane that counts 1, 2 and 5 are individually very serious, more
as they were committed by a senior
person who is supposed to be
exemplary. In respect of count one, Mr Baxter was senior to Mr
Khumalo and in a subtle way actually
told him to look for his
daughter’s name and appoint her. In respect of count two, as
already alluded to, he gave himself
an exemption he really was not
entitled to. He should have lived by example to ensure that everyone
was seen as equal before the
law. In count five, Mr Baxter was
steering trouble at his work place. He was sworn to confidentiality
as a panellist and he breached
it. He challenged the authority of his
supervisor by using a colleague. Considered individually or
cumulatively, the charges justify
a dismissal.
[62] The only procedural
ground of merit raised is one of a delayed disciplinary hearing,
which should have been held within 60
days from the suspension date.
However, no demonstrable prejudice was caused to Mr Baxter. On the
contrary, it prolonged the date
of his dismissal. The benefit of the
finding on the delay is however neutralised by the general fair
procedure adopted at the internal
disciplinary hearing to the point
that it cannot be said that the whole procedure was vitiated by this
delay.
[63] I accordingly issue
the following order:
1.
The dismissal of Mr Baxter by the Respondents was not automatically
unfair as
envisaged in section 187 (1) (h) of the LRA as it did not
constitute an occupational detriment in terms of the provisions of
the
PDA.
2.
The dismissal of Mr Baxter was substantively and procedurally fair.
3.
No costs order is made.
___________
Cele
J
Judge of the Labour
Court of South Africa.
[1]
Act 66 of 1995 (“LRA”).
[2]
26 of 2000.
[3]
See page 43 of Exhibit D
[4]
At pages 62 to 76 of Exhibit D.
[5]
pages 44 to 61 of the Exhibit D
[6]
See page 17 of the transcript.
[7]
(2014) 35 ILJ 2434 (LAC)