IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No : JR 237/21
In the matter between:
KELEBOGILE SETHIBELO Applicant
and
GENERAL PUBLIC SERVICE SECTOR BARGAINING
COUNCIL First Respondent
THABE PHALANE N.0 Second Respondent
DEPARTMENT OF SPORT, ARTS & CULTURE Third Respondent
Heard: 23 January 2025
Delivered: This judgment was handed down electronically by circulation to
the parties' legal representatives through email and publication on Saflii and
the Labour Court’s website. The date for hand- down is deemed to be on 2 6
June 2025
JUDGMENT
2
TLHOTLHALEMAJE, J
Introduction:
[1] In this opposed application, t he applicant , seeks an order reviewing and
setting aside an arbitration award issued by the second respondent (Arbitrator), acting under the auspices of the first respondent (GPSSBC). The award was issued following a referral of a dispute by the applicant after her dismissal by the third
respondent (Department of Arts and Culture) (‘DAC’) . The Arbitrator in the award had
found that the dismissal of the applicant was procedurally and substantively fair.
Background:
[2] The applicant was employed by the D AC as Deputy -Director General (D-
DG): Institutional Governance, with effect from February 2016. On 11 June 2019,
she was issued with notices of precautionary suspension and of a disciplinary
hearing scheduled for 20 June 2019.
[3] It is common cause that the applicant was dismissed in her absence on 23
July 2019 after she failed to attend the disciplinary enquiry . The dismissal followed
upon two allegations of misconduct against her related to attempts to reveal the
identity of a whistleblower and insubordination. Aggrieved with the dismissal, the
applicant had referred a dispute to the GPSSBC. Following unsuccessful attempts at
conciliation , the matter came before the Arbitrator, who had issued the impugned
arbitration award.
The arbitration proceedings :
[4] The record in this matter is voluminous in view of the arbitration proceedings
having taken place over eight days. What follows is a summary of the evidence led
before the Arbitrator .
(i) Alleged attempts to reveal the identity of a whistleblower:
3
[5] In accordance with the notification to attend the disciplinary enquiry, it was
alleged that following an investigation conducted by Cliffe Dekker Hofmeyr INC
(CDH) , the applicant had on 2 February 2017, instructed or alternatively advised the
Chief Executive Officer (CEO) of the National Arts Council of South Africa ( ‘NAC’ ), to
inter alia , investigate and reveal the identity of the individual within NAC , who had
leaked information and made a protected disclosure as defined in section in 1 of the
Protected Disclosure Act1 (the PDA) . The protected disclosure was made to the
Portfolio Committee on Arts and Culture (Portfolio Committee) , pertaining to alleged
corruption and maladministration within the NAC.
[6] The relationship between the DAC and the NAC2 is such that the latter is
one of the 25 statutory bodies that operates under the DAC. The NAC’s role is to
support, develop, and promote the arts in South Africa, particularly through the
funding and facilitation of artistic and cultural initiatives. Its mandate under the DAC
is essentially to provide financial support to individuals and organisations across
various artistic disciplines. The CEO of the NAC is appointed by and reports to its
Council . Members of the Council are appointed by DAC, and they r eport to the
Minister through the DDG or Director General (DG) .
[7] Flowing from the evidence led at arbitration proceedings, the Arbitrator had
accepted that the NAC was an agent and delivery arm of DAC , which funded it and
exercised oversight over it . The Commissioner further added that the DAC instructed
the NAC on its budget , investigated its expenditure, appointed its Board, and further
paid the salaries of its staff members. The CEO of NAC in this case directly reported
to the applicant as D -DG at the time.
1 Act 26 of 2000.
Section 1 provides;
“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.’
2 Established in terms of the National Arts Council Act 56 of 1997
4
[8] The Portfolio Committee had in or around December 2016, advised the then
Minister of DAC, that it was in receipt of information regarding alleged acts of
maladministration and corruption with in the NAC. These included irregularities
pertaining to the conduct of its CEO in awarding funding to particular project s, and
irregular salary increases and bonuses awarded to the CEO and the CFO. It is
common cause that t his information was also leaked to the media at about the same
time.
[9] The Portfolio Committee having reported the matter to then Minister , the
latter had in or about February 2017, instructed the NAC to conduct investigations
into the allegations . The NAC then instituted a forensic investigation into the source
of the leak of information, which was conducted by Grant Thornton Forensic
Investigators . The ‘Grant Thornton report’ was issued on 8 February 2017.
[10] In the forensic report, it was established that the leak emanated from the
Secretary of the Board of NAC ( Ms Makgoka) and was in breach of the NAC’s Code
of Ethics, Information Technology Policy , and Makgoka’s own terms and conditions
of employment. Flowing from the same investigations, it was established that the
NAC’s Communications Manager , Ms Molekwa , was similarly in breach of the same
policies. Makgoka was subsequently suspended in August 2018 , and subjected to a
disciplinary enquiry . She was not found guilty on the charge of leaking information,
but was dismissed in June 2018 for alleged negligence and other charges of
misconduc t.
[11] CDH was at a later stage mandated by the DAC to establish whether there
was a prima facie case of misconduct against the applicant in the light of the
information that was disclosed to the Minister of DAC through the Portfolio
Committee. At the core of the CDH’s investigations leading to the dismissal of the
applicant , was an email that she had sent to the CEO of NAC on 2 February 2017,
and prior to the release of the Grant Thornton report on 08 February 2017. The email
reads as follows;
‘Morning CEO
5
The information we got suffices but someone from your office phoned the
Chairperson of the Portfolio Committee – you need to investigate who leaks
information from NAC .
We did not meet the Minister as the Cabinet lekgotla is on but we did
prepare a report for him…’
[12] Upon receipt of the email, the NAC’s CEO had then forwarded it to various
individuals including Makgoka, who had in turn forwarded it to the Portfolio
Committee. This had had triggered the intervention of the Minister who it is said was
concerned that the information to the Portfolio Committee may have been disclosed
in accordance with the DAC’s Whistleblowing Policies, and thus , the applicant’s
email to the CEO of NAC may have constituted a breach of that policy.
[13] The investigator, Mr Aadil Patel of CDH in his testimony before the Arbitrator,
merely confirm ed the findings of the investigations and the recommendations that
disciplinary proceedings be instituted against the applicant . This was because her
conduct through her email to the CEO of the NAC had exposed the DAC and/or NAC
to potential legal and financial risk , in that she sought to reveal the identity of an
employee who made a protected disclosure in terms of the PDA , and contrary to the
DAC’s policies .
[14] In the CDH report dated 13 May 2019, it was also recommended that to the
extent that the applicant had according to the D G denied having sent the email to the
NAC ’s CEO on 2 February 2017, and further to the extent that she persisted with her
denial, further investigations in that regard should be conducted. It was also
recommended that the DAC should investigate how the Grant Thornton investigators
were mandated by the NAC to investigate the identity of the whistleblower.
[15] Makgoka in her testimony confirmed that she was the whistleblower and had
also met with the Chairperson of the Portfolio Committee regarding alleged
maladministration and corruption at the NA C. She had also confirmed having leaked
the information to the media. Sh e deemed the disclosures to be confidential. She
had testified that even though the applicant was entitled to establish an investigation
6
into the allegations she had made, the latter’s email to the CEO of the NAC , who
was herself implicated in the allegations , served as a tip- off to her.
[16] Mr Vusi Mkhize, the DAC’s DG had testified that part of the applicant’s
responsibilit ies by virtue of her position was to liaise with the CEO of the N AC to
ensure the latter’s proper administration and governance. To the extent that there
were allegations of maladministration in the NAC, the applicant as representative of the DAC with oversight over the NAC, was according to Mkhize, obliged to
investigate those allegations , which investigations however did not extend to
revealing the identity of whistleblowers.
[17] According to Mkhize, the applicant’s response when enquiries were made
about her email to the CEO of NAC was that it (email), was merely advisory and not
an instruction. Mkhize had testified that the DAC’s whistleblowing policy even though
applicable between an employer and an employee, equally applied to employees of
the agencies that fell under the DAC . He testified that the applicant by seeking to
have the identity of the whistleblower revealed, breached that policy.
[18] The evidence led on behalf of the applicant by the CEO of the NAC, Ms
Mangope, was that she (Mangope), was not an employee of DAC and merely
reported to the Board of the NAC . She testified that the whistleblower, Makgoka, was
also not an employee of N AC for the purposes of the PDA. She confirmed having
received an email from the applicant on 2 February 2017, and had merely forwarded
it to staff members at the NAC for the noting of the instruction by the applicant . At the
time, the identity of the whistleblower was not known until 8 February 2017 with the
release of the Thornton report, hence the institution of discipline against Makgoka.
[19] Mangope conceded that the instruction from the applicant via her email was
to investigate the source of the leak of the information to the media and to the
Portfolio Committee . She had however contended that she did not act on the
instruction as she did not take any from the applicant . She further testified that the
disciplinary process initiated against Makgoka had nothing to do with the leak ing of
information, but was as a result of other allegations of misconduct against her .
7
[20] The applicant’s testimony in disputing the fairness of the dismissal, was that
her instruction to Man gope was for her as the CEO of the NAC , to investigate the
source of the leak ed information and for necessary steps to be taken. She
contended that her email was merely meant to enquire about how the leak was
caused and further how information within the NAC was to be streamlined. She
contended that there was nothing wrong in her email in that the information that was
leaked was already in the public domain, and needed to be managed through a
response by the CEO of the NAC.
[21] She disputed that Makgoka was an employee of the DAC . Her contention
was that the NAC was an independent entity established under a different statut e.
She conceded that the Board of the NAC was appointed by Minister , and that the
DAC exercised oversight over the activities of the NAC as its delivery arm , including
its financial matters .
[22] She had testified that because she did not know the identity of the
whistleblower at the time her email was sent , she had not broken any rule. This was
further so in that a further investigation launched through Grant Thornton in
January 2017 into the identity of the person and a report in that regard was issued
only after her email to the CEO of NAC. She contended that she had no authority
over the employees of the NAC , other than their CEO . According to the applicant,
the dismissal of Makgoka had nothing to do with her disclosur e. She testified that
Makgoka was dismissed for incompetence , and that in any event, the N AC at the
time did not even have a whistleblowing policy .
(ii) The allegations of insubordination/ dereliction of duties :
[23] The applicant was also dismissed for allegedly being insubordinate towards
Mkhize , following the latter’s instructions to her to perform certain tasks. It is not
necessary for this Court to elaborate on the details of this charge in that the
Arbitrator had found that the DAC failed to prove the basis thereof since the
applicant had substantially complied with the instruction. There is no cross -review in
regard to the Arbitrator’s findings on this charge, and the Court will not take this
issue any further in thi s judgment.
8
The challenge to procedural fairness of the dismissal :
[24] As already indicted, the disciplinary hearing against the applicant had
proceeded in her absence. Her contention was that this was in circumstances where
it was known that she was on authorised leave when the disciplinary enquiry was
scheduled for 11 June 2019 and completed. She had further contended that there was an agreement that the enquiry would be postponed.
[25] Mkhize, who had attended the disciplinary enquiry, had testified that upon
receipt of the notice of hearing, the applicant had not communicated with the employer about her intended absence. He conceded that the applicant was granted leave on 29 May 2029, but contended that the leave was effectively revoked with the
applicant’s suspension on 11 June 2019. In the letter of suspension, the applicant
was notified that the hearing would take place on 20 June 2019. The hearing was
preceded by the applicant having been granted an opportunity to make
representations to the intended suspension on 4 June 2019. He further conceded
having received communication from the applicant prior to the hearing, but had
advised her that she should speak to the initiator of the hearing.
[26] The applicant’s version was that she did not attend the enquiry since her
leave was authorised for 20 – 21 June 2019. She contended that upon receipt of the
notice of her suspension and notification of the hearing date, she had reported that
she had a commitment to attend to on 20 June 2019. H er attorneys had further sent
communication to the employer about her absence on 20 June 2019, which the
employer had not responded to. The applicant had conceded that Mkhize had
advised her that she should communicate with the initiator (Mr Mkhonto) about her
intended absence. She further contends that she was surprised to receive a call from
Mkhonto on the date of the hearing asking her the reason she was not in attendance.
The Arbitrator’s findings:
[27] In regards to procedural fairness, t he Arbitrator found that at no point did the
applicant apply for sick leave as she was suspended. It was found that the applicant
9
knew that she had to attend the enquiry as she was suspended and not on leave,
and that she ought to have sought a postponement , which she did not do.
Accordingly, the Arbitrator concluded that the dismissal was procedurally fair.
[28] Regarding the substantive fairness of the dismissal related to the allegation
that the applicant sought to reveal the identity of the whistleblower, the Arbitrator concluded that it was not in dispute that the applicant sent an email to the CEO of NAC to investigate the internal source of the leak of information. The Arbitrator had
regard to the provisions of sections 1 and 3
3 of the PDA and the applicant’s
contentions that she did not know the identity of the whistleblower at the time, and or
that the latter was in any event not an employee of the DAC for the purposes of
application of the provisions the whistleblowing policy. The Arbitrator concluded that
the evidence of the CEO of NAC, Mangope, lacked credibility since the whistle blower, Makgoka, was subjected to a disciplinary process flowing from her
identity being revealed.
[29] The Arbitrator also considered the provisions of section 210 of the Labour
Relations Act ( LRA)
4, in regard to the definition of an employee and the
presumptions under section 200A of the LRA in establishing whether Makgoka was an employee of the DAC for the purposes of application of its policies on whistleblowers.
[30] Against the above provisions, the Arbitrator concluded that in the light of the
nature of the relationship between the DAC and the NAC pertaining to the former’s oversight over the latter ; the instructions issued to it ; the interdependence;
appointment of Boards and payment of salaries etc, the DAC was the ‘ broader
employer ’ of Makgoka for the purposes of the PDA , and therefore she was its
employee.
3 Section 3 provides;
‘Employee making protected disclosure not to be subjected to occupational detriment
No employee may be subjected to any occupational detriment by his or her employer on
account, or partly on account, of having made a protected disclosure. ’
4 Act of 1996 (as amended)
10
[31] The Arbitrator concluded that it followed that the applicant had breached
whistleblowing policies in seeking to reveal the identity of the whistleblower . He
found that t he purpose of her email to the CEO of the NAC was not merely about
control of the flow of information, but to assist the CEO in revealing the identity of the
whistle blower. Thus, according to the Arbitrator, whether the identity of the
whistleblower was unknown at the time was irrelevant , as the CEO was instructed to
investigate the her identity, rather than investigate the allegations of
maladministration in the NAC.
The grounds of review:
[32] The applicant attacks the findings of the Arbitrator on procedural and
substantive fairness of her dismissal . She contends that the Arbitrator failed to apply
his mind to the evidence before him , including that she was deprived of a fair
opportunity to state her case at the internal disciplinary hearing; had failed to apply
his mind to the evidence and the issues for determination; committed gross
irregularities and misconduct in relation to the performance of his duties; deprived her of a fair trial of the issues ; and arrived at a decision that a reasonable decision-
maker could not arrive at.
The review test and evaluation:
[33] The test in review applications of this nature is trite. The impugned arbitration
award is tested against all the facts before the arbitrator to ascertain if it meets the
test of reasonableness as enunciated in Sidumo
5. In Duncanmec (Pty) Limited v
Gaylard NO and Others6, the Constitutional Court held that unreasonableness would
warrant interference only if the impugned decision is of the kind that could not be
made by a reasonable decision- maker. It was added that is not the task of reviewing
Court to evaluate the reasons provided by the arbitrator with a view of determining
whether it agrees with them. In Makuleni v Standard Bank of South Africa Ltd and
5Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 IJL 2045; [2007] 12
BLLR 1097; 2008 (2) SA 24; 2008 (2) BCLR 158 (CC)
6(CCT284/17) [2018] ZACC 29; 2018 (11) BCLR 1335 (CC); [2018] 12 BLLR 1137 (CC); 2018 (6) SA
335 (CC); (2018) 39 ILJ 2633 (CC) at paras 41 - 43
11
Others7, it was further reiterated that at the heart of the exercise is a fair reading of
the award, in the context of the body of evidence adduced and an even- handed
assessment of whether such conclusions are untenable. Only if the conclusion is
untenable is a review and setting aside warranted.
Substantive fairness:
[34] Agains t the above principles, the first enquiry in this case is whether the
Arbitrator’s conclusions on the substantive fairness of the dismissal fell within the
bounds of reasonableness. At the core of the main allegation against the applicant
was that with her email of 2 February 2017 to the CEO of NAC, she sought to reveal the identity of a whistleblower.
[35] The starting point are the provisions of the PDA, which the applicant sought
to downplay. 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 .
[36] 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 .
[37] In this case, whether Makgatho had made a disclosure was not in dispute.
Whether that disclosure was protected as defined is not for the Court in this
application to determine. That disclosur e to the Portfolio Committee and the Minister
resulted in investigations. It was further not in dispute that the applicant had caused
the email to be sent to the CEO of NAC on 2 February 2017 after the disclosure was
made.
7(JA125/2021) [2023] ZALAC 4; (2023) 44 ILJ 1005 (LAC); [2023] 4 BLLR 283 (LAC) at para 4
12
[38] Irrespective of the interpretation that the applicant sought to impute to her
email, its plain reading (‘ The information we got suffices but someone from your
office phoned the Chairperson of the Portfolio Committee – you need to investigate
who leaks information from NAC’) , clearly demonstrates that she sought the CEO to
investigate who had leaked the information to the Chairperson of the Portfolio
Committee. By implication, she sought the identity of the person who had leaked the
information to be revealed , and invariably, the identity of the whistleblower. This was
not a mere instruction in the normal course of her duties in overseeing the NAC , for
the CEIO of NAC to investigate the allegations made by Makgoka. The email went
beyond that enquiry .
[39] There is nothing in the email that suggests that the applicant merely sought
or instructed Mangope to investigate the allegations of malfeasance within the NAC as made by Makgatho. If this was her intention, that could have been made clearer
in her email. Equally so, it is irrelevant whether the CEO saw nothing wrong with the
email or had not acted on the instruction. In any event, the applicant by virtue of her position and oversight of the NAC had issued the instruction. Of equal irrelevance is the applicant’s contention that at the time that the email was sent to the CEO of NAC
the identity of the whi stleblower was not known until the release of the Grant
Thornton report on 8 February 2017. Clearly her email of 2 February 2017 indicated
her intentions notwithstanding the release of the Grant Thornton report six days later.
The fact however remains that the applicant sought to have the identity of the
whistleblower revealed , rather than have the nature of the allegations investigated.
[40] There is further no doubt that Makgatho’s disclosure was considered serious
enough by the Portfolio Committee and worthy to be referred to the then Minister of the DAC, who had in turn instructed that investigations be conducted into the matter. It followed that under the provisions of section 4 of the PDA, and to the extent that Makgatho was identified and may have been subjected to any occupational
detriment as defined under section 1 of the PDA, this had indeed exposed the DAC and the NAC to liability under Section 4 of the PDA . These provisions states that any
employee who has been subjected to or may be subjected to an occupational detriment in breach of section 3 of the Act may approach any court having jurisdiction, including the Labour Court, for appropriate relief or pursue any other
13
process allowed or prescribed by any law . Of course, seeking to reveal the identity of
the whistleblower was indeed prejudicial to both the DAC and the NAC in the light of
the provisions of section 4 of the PDA .
[41] Central to the applicant’s defence was that Makgatho was not an employee
of the DAC for the purposes of its whistleblowing policy and liability under section 4 of the PDA. She further takes issue with the Arbitrator’s conclusions that the DAC was the ‘ broader employer ’ of the employees of the NAC.
[42] Under section 1 of the PDA, an ‘ employee’ means any person, excluding an
independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration, and any other person who in any manner assists in carrying on or conducting the business of an employer . This
definition is replicated in section 213 of the LRA. It is however not clear from the
arbitration award what the import and relevance of the provisions of section 200A of
the LRA w as to the overall determination of whether Makgatho was an employee,
particularly in view of the exceptions provided in section 200A (2) of the LRA.
[43] An ‘employer ’ on the other hand in the PDA, is defined as any person who
employs or provides work for any other person and who remunerates or expressly or
tacitly undertakes to remunerate that other person; or who permits any other person
in any manner to assist in the carrying on or conducting of his, her or its business .
[44] For the purposes of determining this dispute in so far as the status of
Makgatho was concerned, of relevance in my view is the definition of ‘ organ of state’
in the PDA, which means any inter alia , department of state or administration in the
national sphere of government , or any other functionary or institution when
exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or exercising a public power or performing a public function in terms of
any legislation. The provisions of section 8(1) of the Public Service Act
8(“the PSA”)
further in my view puts the status of Makgatho and others within the NAC to rest, as
they clearly provide that “The public service shall consist of persons who are
8 Act 103 of 1994
14
employed in posts on the establishment of departments , and additional to the
establishment of departments ” A “department” on the other hand is defined in section
1 of the PSA to mean “a national department, a national government component …”.
[45] A final important provision is section 7 of the PDA, which provides that any
disclosure made in good faith to a member of Cabinet is a protected disclosure if the employee’s employer is an individual appointed in terms of legislation by a member
of Cabinet or a body, the members of which are appointed in terms of legislation by a member of Cabinet , or an organ of state falling within the area of responsibility of the
member concerned.
[46] Against these definitions, there cannot be any substance to the contention
that employees of agencies of a department are not its employees. These employees are as part of a departmental agency, employed additional to the establishment of a department, and are clearly part of a national government component. Departmental agencies are not independent entities in the strict sense of the word irrespective of the statute under which they were established, in the light of their intrinsic connection to the depart ments under which they were established.
[47] In the light of the above provisions, it was common cause that Makgatho was
employed by the NAC, which was a statutory body falling within the area of responsibility of the Minister . The label attached to the employment relationship
between the DAC and Makgatho by the Arbitrator as that of a ‘broader employer’ is
in my view neither here nor there. Against the above- mentioned provisions , it was
irrelevant whether Makgatho’s contract of employment was with the NAC for the
purposes of the whistleblowing policy of the DAC. It was equally irrelevant that the
NAC at the time of the protected disclosure did not have a whistleblowing policy .
What mattered is that she had made a disclosure to the Portfolio Committee and to
the Minister , and she therefore remained protected under the provisions of section 3
of the PDA.
[48] Just to dispel any doubt, if the NAC did not at the time have any
whistleblowing policy, the DAC’s policy axiomatically found application to the employees of the NAC by virtue of the latter’s intrinsic association and exercise of
15
control over it. This approach as correctly pointed out on behalf of the DAC, is in line
with the principle set out in Phaka & others v Bracks & others9.
[49] In the light of the above, it follows that the Arbitrator’s decision on
substantive fairness based on the material placed before him, and irrespective of his
reasoning in coming to that decision, clearly fell within a bound of reasonableness ,
and there is no basis for any interference with it.
Procedural fairness:
[50] To recap, it was common cause that the applicant had applied for leave on
29 May 2019, which was granted for between 20 – 21 June 2019. Prior to taking
leave, she was on 11 June 2019 served with notices of suspension and the
disciplinary enquiry scheduled for 20 June 2019. When she did not attend the disciplinary enquiry on the basis that she was on approved leave, she was dismissed in her absence.
[51] The DAC relied on Solidarity & another v Public Health and Welfare Sectoral
Bargaining Council & others (Solidarity)
10 for the proposition that since the applicant
was on suspension and therefore deemed to be rendering her services, she cannot
be regarded as being absent wit h permission. It was further added that even though
leave was granted, that approval was reversed with the issuing of the notices of
suspension and the disciplinary enquiry. The DAC’s contention in further justifying
the dismissal was that upon her being served with the notices of suspension and
disciplinary enquiry, she did not request any postponements.
[52] Section 188(1)(b) of the LRA requires that a dismissal must be effected in
accordance with a fair procedur e, and Item 4 of Schedule 8 of the Code of Good
9 [2015] 5 BLLR 514 (LAC) at para 31
10 [2013] 4 BLLR 362 (LAC) at para 20, where it was held that;
“When an employee is placed on suspension on full pay, he/she does not have the freedom
to seek other employment while on suspension because he/she remains an employee who
is bound to the terms and conditions of his/her employment contract, save that he/she is
excused from rendering certain services. Therefore, an employee who is on suspension
must be deemed to be rendering his/her services and cannot be regarded as being absent
with permission for purposes of s 17(5) of the PSA. ”
16
Practice spells out what procedural fairness of a dismissal entails. In McGregor v
Public Health and Social Development Sectoral Bargaining Council and Others
(McGregor)11 it was held that irrespective of the gross nature of the misconduct in
question, employees are entitled to fair labour practices and procedurally regular
dismissals12.
[53] In Old Mutual Life Assurance Co SA Ltd v Gumbi13(Gumbi), it was held that
an employee is entitled to a pre- dismissal hearing, and that the principle of audi
alteram partem was central to employment relationships, with the aim of promoting
justice and fairness at the workplace14. It was further added that the right to a pre -
dismissal hearing imposes upon employers nothing more than the obligation to afford employees the opportunity of being heard before employment is terminated by means of a dismissal ; that should the employee fail to take the opportunity offered in
a case where he or she ought to have, the employer’s decision to dismiss cannot be challenged on the basis of procedural unfairness
15; and further that it was the duty of
the employee to ask for a postponement of the hearing if he/she was unable to
attend due to illness16 or some other justifiable reason.
[54] As I understood the applicant’s case, the disciplinary proceedings
commenced in her absence in circumstances where Mkhize, who was present in that
enquiry, failed to disclose to the chairperson that he (Mkhize) had approved her leave. The record of the disciplinary hearing
17 reflects that prior to proceeding in the
applicant’s absence, the Chairperson had recorded that after Mkhonto had called the
applicant to establish her whereabouts, the latter’s explanation was that she was on
leave.
[55] The chairperson had further recorded that he could not however find any
proof of approved leave. This was however in circumstances where Mkhize was
11 (CCT 270/20) [2021] ZACC 14; (2021) 42 ILJ 1643 (CC); [2021] 9 BLLR 861 (CC); 2021 (5) SA 425
(CC); 2021 (10) BCLR 1131 (CC)
12 At para 48
13 (211/2006) [2007] ZASCA 52; [2007] 4 All SA 866 (SCA); [2007] 8 BLLR 699 (SCA); 2007 (5) SA
552 (SCA); (2007) 28 ILJ 1499 (SCA)
14 At paras 4 - 8
15 At para 8
16 At para 29
17 Page 228 of Vol 3 – Part 3 of the Record (CCMA Arbitration File)
17
present in the enquiry but had nonetheless failed to disclose to the chairperson that
indeed the applicant was granted leave for 20- 21 June 2019, which he (Mkhize) had
approved on 29 May 202918. At a minimum, Mkhize was obliged to disclose the true
set of facts before the Chairperson, and then it would have been up t o Mkhonto as
Initiator, to persuade the Chairperson of the enquiry that the suspension trumped
over the approved leave, and that the enquiry ought therefore to proceed in her
absence.
[56] From the record of the disciplinary enquiry as summarised above, it is
apparent that the Chai rperson proceeded on a wrong premise that the applicant was
not at any stage granted authorised leave. This issue based on the evidence was
ignored by the Arbitrator . In fact, the Arbitrator appear to have agreed that the
applicant was not granted leave. This was however not the case on the evidence.
[57] The issue of whether the suspension revoked the approved leave is not even
borne out in the notice of suspension as issued by Mkhize. Inasmuch as it is accepted that an employer may legitimately revoke authorised leave, it is my view however that when an employee is suspended whilst on leave, it must nonetheless
be made clear to that employee that such leave is revoked for whatever reason
because of the suspension. This is so in that authorised leave is in any event a right
arising from the terms and conditions of employment or the Basic Conditions of
Employment Act (BCEA)
19. Accordingly, a mere suspension in the circumstances
such as in casu , without the approved leave having been formally revoked, cannot
lead to a conclusion that the employee ought to have assumed that the authorised
leave was revoked. A suspension of an employee is a right of discipline within the prerogative of an employer, whilst an approved leave is a right emanating from a contract or even the BCEA which cannot be withdrawn by an employer.
[58] Equally so, it is my view that reliance by the DAC on Solidarity is misplaced,
as the facts are clearly distinguishable in that in the latter case, the issue was
whether an employee that was placed on suspension could seek alternative employment whilst on suspension. In this case however , the applicant was granted
18 Page 224 of Vol 3 – Part 3 of the Record (CCMA Arbitration File)
19 Act 75 of 1997
18
approved leave, which ought to have been formally revoked with the subsequent
suspension. There cannot in the circumstances be an automatic revocation of a
contractual or statutory right.
[59] The DAC was correct in pointing out that to the extent that the applicant
believed that her approved leave took precedent and that she could not attend the enquiry due to prior commitments she made when her leave was approved, all that she needed to do in line with Gumbi , was to seek a postponement, rather than
simply not attending the enquiry. Inasmuch as this might be the case, the difficulty the DAC is faced with however is that first, it has already been concluded that the
Chairperson of the hearing was not informed that approved leave was granted. A second consideration is that correspondence
20 was sent to Mkhize on 26 June 2019
by the applicant’s attorneys of record, in which it was recorded that there was an
agreement following upon a meeting on 11 June 2019 with Mkhize, the Initiator and
the Labour Relations Manager, that the disciplinary enquiry as scheduled would be
postponed. There does not seem to have been a response to this correspondence.
[60] An undisputed version that an agreement existed to postpone the
proceedings in my view negates any inference that the applicant wilfully absented herself from the enquiry. It follows that the Arbitrator failed to apply his mind to the
totality of the evidence inclusive of the record of the internal disciplinary enquiry, in
concluding that the applicant had effectively wilfully elected not to attend the enquiry.
It therefore follows that the dismissal of the applicant was procedurally unfair, and
that the Arbitrator’s findings to the contrary was not based on the facts and the law,
thus falling outside the bounds of reasonableness.
[61] In McGregor, it was also held that generally speaking, procedural unfairness
in a dismissal is not insignificant and invites compensation to ensure that dismissals take place with the “sensitivity and care” properly required when the fate of people’s
livelihoods is at stake. The Constitutional Court also acknowledged that to the extent
that procedural unfairness is established, an award of compensation is aimed “to
give meaning to the right not to be unfairly dismissed; to discourage a ‘shotgun
20 Page 225 of Vol 3 Part 3 of the Record
19
approach’ to dismissals”; and, “to recognise the right of an employee to be heard
before action is taken against them, and an acknowledgement of an employee’s worth as a person”
21
[62] Further in McGregor
22, it was held after a consideration of various
authorities, that in making an award of compensation for procedural unfairness, considerations to be taken into account include inter alia , the nature and extent of
the deviation from the procedural requirements , and that the more serious the
employer’s deviation from what was procedurally required, the stronger the case is for the awarding of compensation. A further consideration was whether or not the employee was guilty or innocent of the misconduct; if he was guilty, whether such misconduct was in the circumstances of the case, not sufficient to constitute a fair
reason for the dismissal.
[63] The deviation from the procedural requirement resulting in the applicant
being dismissed in her absence in my view was not minor . The gross nature of the
deviation was compounded by the chairperson of the enquiry having been misled as to whether the applicant was on approved leave or not. Equally so, the fact that an
agreement, which did not appear to be disputed, was reached between the
applicant’s attorney of record, Mkhize and the Initiator to postpone the disciplinary hearing. Had the Arbitrator applied his mind to these glaring facts, clearly a just and equitable compensation to vindicate the applicant’s rights to a fair procedure ought to have been granted.
[64] The Court equally accepts that the applicant through her conduct exposed
the DAC and the NAC to potential liability under section 4 of the PDA. One can only surmise as to the reasoning behind the applicant’s quest to have the identity of the whistleblower revealed, when the latter had made serious allegations of malfeasance
within the NAC, necessitating the intervention of the Portfolio Committee and the Minister. The applicant’s conduct and the subsequent charges in my view, bar the undisputed finding on the charge of gross insubordination, was clearly gross and deser ving of a dismissal. Her refusal to acknowledge her wrong- doing let alone show
21 At para 35
22 At paras 33 - 41
20
any form of contrition at the arbitration or in these proceedings is a further factor to
be taken into account when determining compensation.
[65] Against the full voluminous record that is before the Court, and the time
periods since the dismissal, the Court therefore is in a position to substitute the part
of the award related to procedural fairness rather than remitting the matter to the
GPSSBC for a hearing before another Arbitrator. Accordingly, in the light of the gross
nature of the misconduct in question, the gross deviation from procedural
requirements and the applicant’s extreme failure to acknowledge any wrong- doing, it
is therefore concluded that a compensation amount equivalent to four months’ salary
at the rate of the applicant’s remuneration at the time of her dismissal, is deemed to
be just and equitable under the circumstances.
[66] I have further had regard to the requirements of law and fairness in regards
to costs. Clearly the applicant was within her rights to challenge the arbitrator’s award and given the findings on procedural fairness and the relief awarded in that
regard, I am of the view that the facts and circumstances of this case warrant that
each party be burdened with its own costs.
[67] Accordingly, the following order is made;
Order:
1. The arbitration award issued by the second respondent under case number
GPBC 1446/2019 is reviewed and set aside only in respect of the findings on procedural fairness. The review application in regard to the substantive fairness of
the dismissal is dismissed.
2. That portion of the arbitration award in regard to procedural fairness is
substituted with an order that;
(i) The dismissal of the applicant was only procedurally unfair.
(ii) The Third Respondent is ordered to pay to the applicant, compensation
equivalent to four (4) months’ salary, calculated at her rate of pay as at 23 June
2019.
3. There is no order as to costs .
21
E. Tlhotlhalemaje
Judge of the Labour Court of South Africa
Appearances :
For the A pplicant: P Kirstein, instructed by Marius Scheepers & Co
Attorneys
For the Third Respondent: K Mvubu, instructed by the Office of the State
Attorney , Pretoria