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[2019] ZALCJHB 296
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Luthuli v South African National Blood Service and Another (J1914/19) [2019] ZALCJHB 296 (30 October 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J 1914/19
In the matter between:
MICHAEL MDUDUZI
LUTHULI
Applicant
And
SOUTH AFRICAN NATIONAL
BLOOD SERVICE
First Respondent
THE BOARD OF DIRECTORS
OF THE SOUTH AFRICAN
NATIONAL BLOOD
SERVICE
Second
Respondent
Heard:
15 October 2019
Delivered:
30 October 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
and background:
[1]
The
applicant, seeks an interim order interdicting and restraining the
respondents from subjecting him to any further form of occupational
detriment as defined under section 1 of the Protected Disclosure
Act
[1]
(the PDA), pending the
outcome of a protected disclosure dispute that is before this Court
under case number J1914/19. It is common
cause that the applicant had
initially referred a dispute to the Commission for Conciliation
Mediation and Arbitration (CCMA),
and a certificate of outcome was
issued on 30 September 2019.
[2]
This application was initially enrolled on 19 September 2019
and was postponed to 15 October 2019. During that period,
the applicant filed and served his statement of claim, in which
he
seeks declaratory orders that;
(i)
the disclosures he made on 25 and 31 July 2019 are
‘protected disclosures’ as envisaged in the provisions of
the PDA;
(ii)
that he was being subjected to an occupational detriment on account
of
having made such protected disclosures;
(iii)
that the respondents have contravened section 3 of the PDA;
(iv)
an order directing the respondents to comply with the duties and
legal obligations
arising from section 3B of the PDA, and to
investigate his ‘disclosures’;
(v)
an order that the second respondents be interdicted and restrained
from
subjecting him to any disciplinary action on account of or
partly on account of having made the protected disclosures on 25 and
31 July 2019.
[3]
The
applicant is currently employed as the first respondent’s
Company Secretary, a position he has occupied since 15 May 2014.
The first respondent is a non-profit company licensed under section
53 of the National Health Act,
[2]
with its primary mandate being to provide blood transfusion and other
related services to the general population. The second respondents
constitutes members of the Board of Directors (Board) of the first
respondent.
[4]
The
applicant alleges that he made a protected disclosure with the
Executive Committee (EXCO) of the first respondent on 25 and
31 July 2019. Having made the disclosure he had expected
the respondents to within 21 days from the disclosure, acknowledge
receipt of that disclosure in writing, and to have informed him of
whether a decision was made to investigate the matter in accordance
with section 3B (1)(a) and (b) of the PDA. He was only informed of a
decision by the Board after the 21 days had passed, and even
then,
only after he had lodged an unfair dismissal dispute pertaining to an
occupational detriment in terms of section 186(2)(d)
of the Labour
Relations Act (LRA).
[3]
[5]
The applicant further alleges that only on 31 August 2019
did
one member of the Board (Professor William Gumede), inform him
that in a meeting held on 28 August 2019, the Boar resolved
that he (applicant) should be advised that the trust relationship
between him and the respondents had broken down, and his options
were
either to resign from his position or be subjected to a disciplinary
enquiry. The charges he was to answer to should he choose
to be
subjected to a disciplinary enquiry, included that he had in his
capacity as Company Secretary, recorded the proceedings
of an EXCO
meeting without its knowledge or approval. He was given until
4 September 2019 to make a decision.
[6]
The applicant conceded that he had indeed recorded the EXCO meeting
held
on 22 July 2019 and had kept the audio recording
thereof, which he had also made available to the Court. He however
defended
his actions, contending that it was part and parcel of his
duties as Company Secretary to record EXCO meetings and to keep a
record.
His primary contention is that the
recordings are proof that the first respondent’s Chief
Executive Officer (CEO) had in that
meeting, conducted himself in a
manner that breached his legal duties and obligations.
[7]
On 5 September 2019, he informed Professor Gumede in
writing
that he will not resign as he had done nothing wrong by
recording the EXCO meeting. He further in his response stated that he
viewed
the conduct of the respondents as amounting to occupational
detriment as a result of which he had referred a dispute to the CCMA.
[8]
On 11 September 2019, the applicant was issued with a
letter
of his immediate precautionary suspension with full pay. In
the letter of suspension, he was also informed that his grievance
against
the CEO would be dealt with in accordance with the first
respondent’s policy by an independent chairperson. The
respondents
conceded that the institution of disciplinary proceedings
is imminent. It was however pointed out that the applicant in this
application
has not challenged the suspension or sought that it be
uplifted.
[9]
Before dealing with the merits of this application, two preliminary
issues
raised on behalf of the applicant need to be disposed of. The
first relates to a further supplementary affidavit filed on behalf
of
the respondents, which the applicant had objected to. The basis of
that objection was that the supplementary affidavit filed
on
11 October 2019 was done without notice, or an agreement
between the parties, or leave of the Court.
[10]
It is
correct that with any motion proceedings,
the
sequence and timing for the filing of the affidavits by the
respective parties is set out in Rule 11 of the Rules of this Court
.
In
Rockridge
Game Farm (Pty) Ltd v Breedt and Others
[4]
,
it was
reiterated that any other affidavit besides the normal three sets of
affidavits is a further affidavit, which can only be
permissible with
the leave of the Court, and where
such
consent was not granted, that affidavit so filed is
pro
non scripto.
[5]
[11]
The submissions made on behalf of Mr Belger on
behalf of the respondents that the further affidavit was necessitated
by the fact
that new material was raised in the replying affidavit
cannot be sustainable, on the basis that it is trite that a case
ought to
be made out in the founding affidavit in any event, and not
in the replying affidavit. Accordingly, there is no need to respond
to new evidence or material raised in the replying affidavit by way
of a further affidavit. Even if there was such a need, such
a further
affidavit can only be permissible if filed with the leave of the
Court.
[12]
Equally so, the fact that the applicant did not in
the founding affidavit raise or give a full account of certain events
is not
an exceptional ground for the purposes of allowing the
supplementary affidavit. Thus, to the extent that any such new
material
was raised in the replying affidavit or was not raised in
full in the founding affidavit, this cannot be a basis for making
exceptions
in regard to the trite rules related to the sequence and
timing of the filing of affidavits. To that end, the supplementary
affidavit
as filed by the respondents and the evidence contained
therein
is disallowed.
[13]
A second preliminary point raised on behalf of the
applicant by Mr Kela related to the fact that the CEO (Dr Jonathan
Louw) of the
first respondent, was also the deponent in the answering
affidavit, and in circumstances where he was the subject of the
complaint
leading to the protected disclosure. Again, this
preliminary point lacks merit, especially since it is based on the
first
respondent’s own whistle-blowing policy. Mr Kela relied
on clauses 5.6.2 and 5.7.6 of the policy, which essentially provides
that if the CEO is implicated in the tip-off, he should be excused
from any association from the matter until it is fully dealt
with.
The policy is an internal document that has no bearing on the
authority and mandate of the CEO to depose to an affidavit
in these
proceedings, and to the extent that the applicant does not take issue
with that authority on any other ground, in my view,
that should be
the end of the matter.
The legal framework
and evaluation:
[14]
To the
extent that the applicant seeks interim relief, the legal
requirements in this regard are trite as restated in
Moyane
v Ramaphosa and Others.
[6]
Thus,
the applicant needs to establish a
prima
facie
right even if it is open to some doubt; a reasonable apprehension of
irreparable and imminent harm to the right, if an interdict
is not
granted; the balance of convenience must favour the grant of the
interdict; and that he has no other reasonable remedy.
Furthermore,
whilst it is appreciated that a Court has the power to grant a
restraining order of that kind, it does not readily
do so, except
when a proper and strong case has been made out for the relief and
then, even so, only in the clearest of cases.
[7]
[15]
The
applicant seeks relief under section 158(1)(a)(i) or (ii) of the LRA
read together with section 4(1)(a) of the PDA as a result
of already
being subjected to (and likely to) be subjected to further
occupational detriment on account of having made a protected
disclosure as envisaged in section 6 of the PDA. He contends that his
prima
facie
right is based in the provisions of section 3 of the PDA. He further
relies on the protection afforded to him as a whistle-blower
under
section 159(4) of the Companies Act
[8]
;
and his constitutionally protected right to fair labour practices
under section 186(2) of the LRA.
[16]
It was submitted on behalf of the applicant that to the extent
that what he sought
was an interdict
pendente lite,
what was
at issue was a right which was the subject matter of the main action
and which he sought to protect by means of interim
relief. It was
further submitted that given the nature of the relief he seeks, all
that he needed to demonstrate are reasonable
prospects of success and
the balance of convenience, and that in the end, whether he had made
a protected disclosure or not was
the subject for adjudication by the
Court that will be seized with the main dispute.
[17]
The respondent’s contention was that the applicant has not made
any disclosures let
alone protected disclosures. They contend that
what the applicant seeks is in effect a final order with a view of
seeking to prohibit
being subjected to any disciplinary action and
the consequences which may flow from such disciplinary action. In
their view, the
applicant’s complaints are to be dealt with in
accordance with the first respondent’s internal grievance
procedures.
To this end, it was submitted that in accordance with the
provisions of section 3B of the PDA, the applicant was accordingly
informed
of this approach.
[18]
In its preamble, the purpose of the PDA is to make provision for
procedures in terms of
which employees in both the private and the
public sectors may disclose unlawful or irregular conduct by their
employers or by
other employees and to provide for the protection of
employees who make such disclosures.
[19]
The
approach in a determination of whether a disclosure, if any, is
protected was aptly summarised in
TSB
Sugar RSA Ltd (now RCL Food Sugar Ltd) v Dorey
[9]
as
follows;
“
The proper
approach to the primary question in this appeal is: first to
determine whether the various disclosures of information
constitute
disclosures as defined in s 1 of the PDA; secondly, to decide if the
disclosures are protected disclosures, as contemplated
in s 1, read
with s 6 of the PDA; and thirdly, whether Dorey was subjected to an
occupational detriment (discipline and dismissal)
by RCL on account,
or partly on account, of having made a protected disclosure. The last
enquiry requires careful consideration
of the evidence regarding the
reason for the dismissal to establish if the disclosure causally
accounted or partly accounted for
the dismissal”
[20]
Under the provisions of section 3 of the PDA, employees making
‘
protected disclosures’
are not to be subjected to
occupational detriment on account of, or partly on account, of having
made that disclosure.
An “
occupational
detriment
”
in relation to the
working environment of an employee is defined in section 1 of the PDA
to include
inter alia
,
being subjected to any disciplinary action, being dismissed or being
otherwise adversely affected in respect of his or her employment
including employment opportunities and work security.
[21]
Certain obligations under section 3B of the PDA are imposed on the
person or body to whom
a protected disclosure was made, including
taking a decision as to whether the matter would be investigated; or
whether the disclosure
will be referred to another person or body if
that disclosure could be investigated or dealt with more
appropriately by that other
person or body; and in writing
acknowledge receipt of the disclosure by informing the employee or
worker of the any decision in
regards to the disclosure made, and the
reasons in that regard.
[22]
Central
however to any determination as to whether a protection under the
provisions of the PDA is due is whether in fact such a
‘disclosure’
as defined under section 1(b) of the PDA was made; whether such a
disclosure is protected as defined in
section 1 of the PDA,
[10]
and whether the employee was/is/being subjected to some occupational
detriment as a consequence of that disclosure. It follows
that the
onus is upon the applicant to prove that he made a disclosure as
defined, and that any further steps that the respondents
seeks to
take against him will constitute an occupational detriment.
[11]
[23]
The
provisions of section 6 of the PDA
[12]
essentially provides guidelines as to whether the disclosure made is
legally protected or not. Thus, this will depend upon whether
the
disclosure was made according to a substantively correct procedure;
whether it was not made for purposes of personal gain;
whether it was
made without committing a criminal offence; whether it was made in
good faith and is reasonably believed by the
whistle-blower to be
true; and whether it was made to the right authority.
[13]
[24]
Furthermore,
it is accepted that a disclosure made in terms of the PDA need not be
factually accurate. What is required in order
for the disclosure to
be protected is that the employee making such a disclosure must have
reasonably believed that the information
disclosed is substantially
true, and that
at
the very least, tended to show that an impropriety (criminal
activities or misconduct) has, is being, or may be committed, or
that
the respondent has, is failing, or may in the future fail to comply
with its legal obligations.
[14]
In the end, not all information disclosed would qualify as protected.
[25]
A further
important consideration is that there must be a causal link between
the disclosure and the occupational detriment, which
link is examined
by an assessment of the timing of the institution of the
charges or the occupational detriment; the reasons
given by the
employer for instituting the charges or occupational detriment; the
nature of the disclosure; and
the
person responsible for taking the decision to institute the
charges.
[15]
[26]
Applying the above legal principles to the facts of this case, and
bearing in mind the
nature of relief sought, the following
observations are made;
26.1
It is common cause that the first respondent has a whistle-blowing
policy which had been in effect
since September 2017.
Disclosures (tip-offs) are ordinarily received through the
first respondent’s Fraud Hotline
Administrator and sent to the
Legal Manager. Where the Legal Manager is implicated, any tip-offs
must be sent to the CEO. Should
the CEO and the Legal Manager be
implicated, tip-offs should be sent to the Chairperson of the Audit
Committee. Should the Chairperson
of the Audit Committee be
implicated, the tip-offs would be sent to the Chairperson of the
Board.
26.2
The applicant contends that the disclosures he made are contained in
Annexures ‘F’
and ‘G’ to the founding
affidavit. It was common cause that ‘Annexure F’, which
the applicant referred
to as a report, was sent by way of email to
EXCO and Board members. This was contrary to the provisions of the
very same policy
the applicant sought to rely on. Clause 5.4 of the
policy specifically provides that in order to be in compliance with
the PDA,
reports (tip-offs) are to be sent to the first respondent’s
Fraud Hotline in a particular format. Other than that, and to
the
extent that the complaint was against the CEO, such a report was to
be sent to the Chairperson of the Audit Committee. Clearly
as the
applicant had conceded in the replying affidavit, he did not follow
this particular procedure designed by the first respondent,
and his
contentions that he did not follow the whistleblowing procedure on
the basis that it was compromised cannot be an excuse,
more
particularly since the CEO was in any event part of the very same
EXCO that the report was sent to.
26.3
The fact that in making the disclosure the applicant failed to follow
the procedure laid out
in the policy raises question of his
bona
fides
as correctly submitted on behalf of the respondent. From
the contents of the report, it is apparent that the applicant and the
CEO were not having the best of working relationships, with this
being apparent from a variety of issues the applicant had raised,
including questioning the CEO’s management style, his alleged
history of finger-pointing when things go wrong, his failure
to take
responsibility, his demeaning treatment of other employees and
propensity to seek their blind loyalty, reference to the
CEO as being
belligerent, vicious, vindictive, unprofessional, a bully, and
lacking leadership etc.
26.4
On the face of it, the report was not just about raising any
impropriety if any. I agree with
the submissions made on behalf of
the respondents that by sending the report to the entire Board and
EXCO, this was also designed
to not only ‘expose’ the
CEO’s limitations as a leader but also to humiliate and
belittle him, and to essentially
cast aspersions on his character. If
ever there is any doubt about these observation, in paragraph 19 of
the report, the applicant
states;
“
Also, the Board
needs to know that the CEO is not just the well-mannered, and
softy-spoken gentle person he portrays in meetings.
There is another
side to this man, that some of us have to deal with daily. That way
no one will be able to say ‘I did not
know’”
26.5
My observations in regards to the
bona fides
of the applicant
are further fortified by an assessment of whether any disclosure made
is protected. Bearing in mind that as to
whether a protected
disclosure was or was not made is an issue for final determination in
a matter pending before the Court, a
prima facie
view however
should be premised on the context within which the report came about
and its contents and objectives
.
26.6
The report is a six and half paged document titled “
SANBS
Tip-offs”,
and is essentially a narration of what
transpired in an EXCO meeting held 22 July 2019, and the
applicant’s own
explanation of the events in regards to what he
deemed to be unfounded attacks against him by the first respondent’s
CEO.
This is evident from the first sentence in the report, in which
the applicant states that ‘
he felt compelled to respond in
detail to the unfounded and patently false allegations levelled
against him’
at that meeting. At paragraph 18 of the report
he reiterated that he wrote it ‘to tell his side of the story’.
26.7
In the report, the applicant confirmed that the issue of tip-offs and
how they should be handled
internally was introduced as an agenda
item following a tip-off that was lodged by the recognised union,
NEHAWU against the CEO
in June 2019, related to allegations of
misconduct. The tip-off however was received by the CEO rather than
the Legal Manager.
According to the applicant, NEHAWU had raised its
concerns with him and HR Executive about the CEO receiving the
tip-offs. It however
transpired that since February 2019, the
CEO had issued an instruction that all tip-offs be sent to him, and
that in a case
where he was implicated, the tip-off should be sent to
the Chairperson of the Audit Committee.
26.8
The applicant further alleges that since NEHAWU had raised its
concerns, this had prompted the
CEO to start looking for a ‘fall
guy’, which happened to be him. What triggered the disclosure
however were the events
that took place in an EXCO meeting held on
22 July 2019. The applicant alleges that the CEO in that
meeting, rude, crass,
demeaning, dishonest and a bully, and had lied
about why he had taken over the tip-offs. The applicant further
alleges that the
CEO in order to extricate himself, had sought to
shift the blame on him, by accusing him of not managing the tip-offs.
26.9
Other than complaining about the general conduct of the CEO, the
applicant further alleged that
the CEO in December 2018 had
informed him that the Board did not want him, and had offered him 6
months to leave the first
respondent. He further complained about the
conduct of the CEO towards other employees in general, and his quest
to obtain the
loyalty of these employees towards him rather than the
first respondent.
26.10 Clearly
the report was not just about ‘tip-offs’ or a disclosure
of some impropriety as its heading
suggested. Even if the applicant
had reason to believe that the alleged interference by the CEO with
the tip-off procedures amounted
to an impropriety of some sort, which
is something for the trial court to determine, the fact that he
raised this issue within
the context of a variety of other matters
including his own personal views on the character of the CEO, again
raises concerns about
his
bona fides
.
26.11 The
report was closely followed by ‘
Annexure G’
addressed to the Board, which is the applicant’s
complaint/grievance he had lodged on 31 July 2019 against
the
CEO to the first respondent. The applicant attached the report to
the grievance, and incidentally refers to the contents of that
report
as the grievance. He
stated that the grievance had
been on-going since February 2018 but came to a head on
22 July 2019. He
sought that the grievance hearing
should
inter alia
, determine whether the conduct of the CEO in
a meeting of 22 July 2019 constituted an unfair labour
practice; or an attempt
to constructively dismiss him; whether he was
abusive, demeaning, insulting and threatening; or whether his conduct
constituted
gross dishonesty; or improper conduct unbecoming of a
senior employee; or whether he had brought the company into
disrepute. He
further sought the hearing to determine whether the
Board should not institute disciplinary action against the CEO.
26.12 At this
stage of the judgment, and to the extent that the applicant deemed
the report and his grievance collectively
to be a protected
disclosure, it is of importance to distinguish between a disclosure
as defined in section 1 of the PDA, and an
internal grievance, which
ordinarily is resolved by way of the employer’s own grievance
procedures.
26.13 The
respondents’ approach, as ventilated in the answering affidavit
by the CEO, is that the application
before the Court is merely a
stratagem to avoid the imminent disciplinary hearing, as inherent in
the stratagem is an attempt to
bolster the applicant’s case by
alleging that his concerns, couched in the form of a grievance, can
be elevated to protected
disclosures, enjoying the protection under
the PDA. Louw averred that the applicant’s concerns are merely
a grievance against
him, which grievance is in the process of being
dealt with internally.
26.14
In
Kabe
v Nedbank Ltd
[16]
,
it was stated that;
“
The grievances by
the applicant do not meet the definition set out above
(Definition
of ‘protected disclosure’ in Section 1 of the PDA
).
At a workplace, it is awaited that employees would be aggrieved now
and then. It is for that reason that a good practice dictates
that an
employer should have in place a dedicated procedure to deal with
employees’ grievances. Some grievances have merit
whilst others
do not. Regard being had to the preamble of the PDA, it was not
enacted to allow employees to disparage their employers.
Ordinarily,
grievances are more about personal feelings of employees. The PDA is
not intended to deal with personal feelings but
with criminal and
irregular conduct. It is largely concerned with more serious breaches
of legal obligations.”
26.15
It is
further trite that the scheme of the PDA encourages internal
procedures and remedies to be exhausted before the disclosure
is made
public.
[17]
In
Alphen
v Rheinmetall Denel Munition
,
it was further confirmed that
the lodging of a grievance does indeed constitute an exercise of a
right conferred by the LRA for the purposes of a claim of
automatically
unfair dismissal under section 187(1) of the LRA. This
was because the act of lodging a grievance is merely an assertion of
a right
not to be treated unfairly, something which is guaranteed
under the protection of fair labour practices enshrined in section
23(1)
of the Constitution and section 185(b) of the LRA.
[18]
26.16
In
consideration of the above, the starting point is that a disclosure
cannot be protected if it is made in fulfilment of an existing
duty
of the employee in the normal scope of his or her work. Furthermore,
whether a report or disclosure of notorious information
could or
could not constitute the substance of a protected disclosure will be
dependent on the circumstances of each case and the
nature of
information disclosed.
[19]
26.17 In this
case, and on the applicant’s own version, he is accountable to
the Board as Company Secretary, and
in accordance
with the provisions of section 88(1) of the Companies Act,
his
scope of duties included
inter alia
, recording EXCO meetings
and ensuring that minutes were properly recorded and distributed.
26.18 It can
be accepted from the applicant’s own version that what he had
disclosed in his report to EXCO, was
what was extensively discussed
in the very same EXCO meeting of 22 July 2019. The report,
as can be gleaned from its
very first sentence, was merely a response
to what the applicant deemed to be ‘unfounded and patently
false allegations levelled
against him’ by the CEO in that
meeting, in the presence of EXCO. Other than the concerns raised in
regards to whether the
CEO had interfered with the first respondent’s
tip-offs’ policy, I am in agreement with the submissions made
on behalf
of the respondents that the report, as already indicated
elsewhere in this judgment, is more about personally attacking the
CEO
and his management style, and consists of the applicant’s
own opinions on his own interactions with the CEO and the latter’s
management style and treatment of other employees. The conduct the
applicant complained of relates in essence to his own personal
grievances that have evolved between him and the CEO over time since
the latter took over. The definition of a protected disclosure
is
extremely wide, but it could not have been envisaged that it should
cover personal grievances made against senior employees.
To the
extent that central to the applicant’s complaint in regards to
the tip-offs is that the CEO interfered with the policy
in that
regard, whether that constituted an unlawful or criminal conduct is
not for this Court to decide.
26.19
Prima
facie
, that report in the light of the subsequent grievance
cannot (collectively) acquire the status of a disclosure, let alone a
protected
one. This is so in that
the terms in
which the report are articulated indicate that they were driven by
personal animosity rather than an intention to make
a disclosure to
the Board or EXCO. The strident language of the grievance is further
a strong indication that the disclosure is
not made good faith as
required by the PDA, as what he seeks is to ensure that not only are
his grievances dealt with, but that
the CEO equally faces some
consequences.
26.20
Thus,
to the extent that the applicant chose to utilise the grievance
procedure, the issues raised in the grievance and the process
chosen
by the applicant cannot morph into a matter falling within the
confines of the PDA. If the applicant
had reasonably believed
that the conduct of the CEO was unlawful, and in the light of
the process he chose, it is for the
grievance hearing to make such a
determination.
26.21 To the
extent that the applicant complained of any occupational detriment,
an assessment of the timing of the suspension, the
reasons given by the respondents for the suspension reveals that
it is common cause that the applicant was placed on precautionary
suspension with effect from 11 September 2019, some
more
than one month since the alleged protected disclosure was made. The
suspension is pending investigations into the applicant’s
conduct related to the recording of the EXCO meeting without its
consent. The applicant has not been advised of whether any further
disciplinary steps would be taken against him. The applicant
nonetheless points to this suspension as being linked to the
disclosures
he made. It was further submitted on his behalf that the
fact that he was already asked by the CEO to resign; asked to
withdraw
his grievances and further suspended after his referral of
the dispute are signs of an occupational detriment .
26.22 To the
extent that the whistle-blowing procedures were not followed as
conceded by the applicant, and further
in the light of the views
expressed in this judgment about whether the disclosures, if any were
made, and also in good faith, it
is doubted that on the face of it,
there is
causal link between the protected
disclosures and the occupational detriment. In this regard, the
applicant conceded that indeed
he had recorded the EXCO meeting using
his own mobile phone. If the respondents had reason to believe that
the actions of the applicant
constituted misconduct deserving an
investigation, that is a matter within their prerogative.
26.23
The
fact that the applicant was allegedly told in December 2018,
some nine months before the purported disclosure that he should
resign cannot possibly be linked to that disclosure for the purposes
of a definition of occupational detriment under section 1
of the PDA.
This is particularly so since it is not clear as to what the basis of
that request were.
26.24
To
the extent that the applicant had not deemed it necessary to
challenge his suspension, he cannot complain of that step as
constituting
an occupational detriment without even challenging it.
In this regard, where the ultimate decision was to be taken that he
should
be subjected to a disciplinary enquiry, it is not as if he is
without remedies. This is so in that first, his grievance
hearing
will take place. Second, to the extent that the disciplinary
proceedings may be instituted against him resulting in an adverse
outcome, like all other employees, he will have recourse in the
provisions of section 191 of the LRA in protecting his rights. Third,
he has already launched proceedings in this Court in regard to the
full merits of his alleged protected disclosure.
[27]
In the light of the above factors, it cannot be
said that the applicant had demonstrated a clear right or even a
prima facie
right to the relief that he seeks. There is no basis for any
conclusion to be reached that he stands to suffer irreversible and
irreparable harm as he had alleged, in the event that he is not
granted the interim relief he seeks. It is further not correct
as he
had alleged, that he has no alternative remedies. As things stand, he
has already pursued his remedies under section 4(1)(B)
of the PDA.
[28]
It is trite
that most applications for an interim interdict are decided on the
basis of the balance of convenience, which must favour
the grant of
an interdict, and this is an exercise that must involve weighing the
harm to be endured by an applicant if interim
relief is not granted,
as against the harm that a respondent will bear, if the interdict is
granted. A Court must assess all relevant
factors carefully in order
to decide where the balance of convenience rests.
[20]
[29]
In this case, upon a proper assessment of all the
relevant factors, inclusive of the nature of the alleged disclosure,
it cannot
be said that the balance of convenience favours the
applicant in circumstances where the respondents’ rights and
prerogative
to conduct investigations into any alleged acts of
misconduct and to take any appropriate action where necessary would
be compromised.
[30]
It follows in the light of the above that the applicant’s
application must fail.
I have further had regard to the requirements
of law and fairness, and I am of the view that the facts and
circumstances of this
case do not call for a costs order.
[31]
Accordingly, the following order is made;
Order:
1. The applicant’s
application is dismissed.
2. There is no order as
to costs.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: ZD Kela, instructed by Ndumiso Voyi INC
For
the First and Second Respondents: P Belger, instructed by
Cowan-Harper-Madikizela Attorneys
[1]
Act
26 of 2000
[2]
Act
61 of 2003
[3]
Act of 1996 (as amended)
[4]
(34949/2013) [2017] ZAGPPHC 408 (27 July 2017)
[5]
See also
Hano
Trading CC v J R 209 Investments (Pty) Ltd
(650/11)
[2012] ZASCA 127
(21 September 2012) at paragraphs 10 - 14
[6]
(82287/2018) [2018] ZAGPPHC 835;
[2019] 1 All SA 718
(GP) at
paragraphs 26 – 27
[7]
See
also
National
Treasury v Opposition to Urban Tolling Alliance
2012
(6) SA 223
(CC) at para 65
[8]
Act 71 of 2008.
Section
159:
Protection of Whistle-blowers
(1)
To the extent that this section creates any right of, or establishes
any protection for, an employee, as defined
in the Protected
Disclosures Act, 2000 (Act No. 26 of 2000)—
(a)
that right or protection is in addition to, and not in
substitution for, any right
or protection established by that
Act; and
(b)
that Act applies to a disclosure contemplated in this section
by an employee, as defined in that Act, irrespective
whether that
Act would otherwise apply to that disclosure.
(2)
Any provision of a company’s Memorandum of Incorporation or
rules, or an agreement, is void to the extent
that it is
inconsistent with, or purports to limit, set aside or negate the
effect of this section.
(3)
This section applies to any disclosure of information by a person
contemplated in subsection (4) if—
(a)
it is made in good faith to the Commission, the Companies
Tribunal, the Panel, a regulatory authority, an
exchange, a legal
adviser, a director, prescribed officer, company secretary, auditor,
board or committee of the company concerned;
and
(b)
the person making the disclosure reasonably believed at the time of
the disclosure that the information showed
or tended to show that a
company or external company, or a director or prescribed officer of
a company acting in
that capacity, has-
(i)
contravened this Act, or a law mentioned in Schedule 4
(ii)
failed or is failing to comply with any statutory obligation to
which the company is subject;
(iii)
engaged in conduct that has endangered or is likely to endanger the
health
or safety of any individual, or damage the environment;
(iv)
unfairly discriminated, or condoned unfair discrimination, against
any
person,
as contemplated in section 9 of the Constitution and the Promotion
of Equality and Prevention of Unfair Discrimination
Act, 2000 (Act
No. 4 of 2000); or
(v)
contravened any other legislation in a manner that could expose
the
company to an actual or contingent risk of liability, or is
inherently prejudicial to the interests of the company.
(4)
A shareholder, director, company secretary, prescribed officer or
employee of a company, a registered trade union
that represents
employees of the company or another representative of the employees
of that company, a supplier of goods or services
to a company, or an
employee of such a supplier, who makes a disclosure contemplated in
this section-
(a)
has qualified privilege in respect of the disclosure; and
(b)
is immune from any civil, criminal or administrative liability
for that disclosure.
[9]
(2019)
40 ILJ 1224 (LAC) at para 56
[10]
A
“protected disclosure” is defined in section 1 of the
PDA to include a disclosure made to an employer in accordance
with
section 6 of the PDA. Section 6(1) reads:
‘
Any
disclosure made in good faith -
(a)
and substantially in accordance with any
procedure prescribed, or authorised by the employee’s employer
for reporting or
otherwise remedying the impropriety concerned; or
(b)
to the employer of the employee where
there is no procedure as contemplated in paragraph (a), is a
protected disclosure.’
[11]
Van
Alphen v Rheinmetall Denel Munition
(Pty) Ltd ([2013]
10 BLLR 1043
(LC); (2013) ILJ 34 3314 (LC) at para
22
[12]
Section
6(1) reads:
‘
Any
disclosure made in good faith -
(a)
and substantially in accordance with any
procedure prescribed, or authorised by the employee’s employer
for reporting or
otherwise remedying the impropriety concerned; or
(b)
to the employer of the employee where
there is no procedure as contemplated in paragraph (a), is a
protected disclosure.’
[13]
See
sections 5 – 8 of the PDA and the Regulations Relating to
Protected Disclosures, 14 September 2018, Government Gazette
No.
41904
[14]
See
Chowan
v Associated Motor Holdings (Pty) Ltd and Others
[2018] ZAGPJHC 40;
[2018] 2 All SA 720
(GJ);
2018 (4) SA 145
(GJ);
(2018) 39 ILJ 1523 (GJ);
John
v Afrox Oxygen Limited
[2018] 5 BLLR 476
(LAC); (2018) 39 ILJ 1278 (LAC) at paras [21] and
[25]
[15]
Independent
Municipal & Allied Trade Union & another v City of Matlosana
Local Municipality & another
(2014)
35 ILJ 2459 (LC)
[16]
(2018) 39 ILJ 1760 (LC) at para [29]
[17]
Chowan
v Associated Motor Holdings (Pty) Ltd and Others
at
para 44
[18]
At
paragraphs [19] – [20]
[19]
Goldgro
(Pty) Ltd v Mcevoy
(2019) 40 ILJ 1202 (LAC) at para 23 where it was held;
“
The
question of the prior knowledge and extent of the knowledge of the
persons or entity to whom the disclosure is made has been
the
subject of judicial consideration. In
Beaurain and Others v
PHSDSBC (Labour Court, unreported, C15/2012, per Steenkamp J, 16
April 2014))
it was held that a “report” of
notorious information could not constitute the substance of a
protected disclosure.
That case concerned poor ventilation in a
hospital, the subject matter of protracted prior discussion,
complaints and investigation.
In
City of Tshwane
Metropolitan Municipality v Engineering Council of SA and Another
Wallis JA dealt with a submission that prior knowledge by the
employer of the subject matter of the disclosure is a bar to the
disclosure qualifying as a protected disclosure. That view was
rejected. That situation is distinguishable from the present case;
the appellant, here, was not merely “aware” of the
facts; it was, through its board, actively addressing the issues
and
the respondent was an active participant in so doing.”
[20]
See
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
at
para 55