REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN CASE NO. C7/2003
In the matter between :
KEITH GRIEVE Applicant
and
DENEL (PTY) LTD
Respondent
(Reg. No: 1992/001337/07)
_________________________________________________________
JUDGMENT
PILLEMER, AJ:
[1] The Respondent is a private company. The state is its sole
shareholder and it is managed by a board of directors
appointed by the Minister for Public Enterprises. The
Respondent’s core business relates to armaments. It
operates its business through various divisions which are
located throughout the country. This application concerns
the division which is styled “Swartklip Products” (“Swartklip”).
The Applicant is employed at Swartklip as its safety and
security manager.
[2] It is the Applicant’s case that the general manager at
Swartklip, one Anthony Bedford, by his management style,
has alienated himself from some of the employees who in
turn have organised themselves into what are termed
“concerned groups”. The Applicant has assumed the role of
spokesman for one such group. There is no clarity on the size
and makeup of the membership of the group; it being
alleged that members are fearful of being victimised if
identified. Bedford concedes that there appears to be
dissatisfaction and concern about his management of
Swartklip by what he describes as “the Applicant and some
nameless individuals”.
[3] The Applicant and members of his group appear to have over
some time amassed information and “evidence” with the
intention of drawing their contentions of wrong-doing and
poor management by Bedford and those closely associated
with him to the board of the Respondent with the ultimate
aim of having him removed from Swartklip.
[4] Applicant disclosed information in respect of four matters
relating to alleged unauthorised expenditure, nepotism and
financial wrong-doing by Bedford and those associated with
him to his immediate superior a Mr Schultz, informally on 23
October 2002. Following that disclosure a meeting was held
between the Applicant and Mr Schultz and thereafter a
further meeting was convened on 24 October 2002 which was
also attended by a Mr van der Merwe who is a member of the
“financial executive” of Swartklip.
[5] On 29 October Mr Schultz called the Applicant and told him
that investigating the disclosures would place him in an
uncomfortable position and Applicant was advised, if he
wished to pursue his disclosures, to take the matter directly
to the board.
[6] Applicant was in the process of finalising the report to the
board when he was required, as part of his job function, to be
involved in an investigation into an explosion which had
occurred at Swartklip. In that context he had to meet with
Schultz and Bedford. Schultz had mentioned to Bedford that
the Applicant had referred certain matters to him and he had
in turn told the Applicant that these were matters that should
be taken up with the board and not with him. Bedford was
accordingly aware that the Applicant was in the process of
preparing a report for the board and used the opportunity
when meetings were held with regard to the investigation
into the explosion to discuss Applicant’s complaint against
him. At meetings on the 14 th and 15 th November 2002
Applicant was asked to disclose to Bedford what information
he relied upon and Bedford also wanted Applicant to identify
the persons he represented. Applicant provided some
information in respect of the four matters he had raised with
Schultz but did not agree to identify the others involved as
they feared intimidation and he did not believe he was
authorised to disclose their identities. The report was
prepared and submitted a few days later. It was sent to the
board on the 19 th November 2002 and was put up as an
annexure in these proceedings.
[7] On the 20 th November 2002 the Applicant was suspended
from his employment on full pay and in early December he
was charged with misconduct. The disciplinary hearing,
which was scheduled for December and then postponed, was
set down to proceed on Monday 13 January 2003. The
Applicant was in the process of preparing for this hearing
together with his attorney when their joint research identified
the provisions of the Protected Disclosures Act and, if the Act
applied, the protection provided therein which included the
right not to be subjected to disciplinary action. Applicant was
advised that he enjoyed protection under the Act and
launched proceedings as a matter of urgency for interim
relief relying upon the Act. The matter came before me at
2.00 p.m. on 10 January 2003 and, after the parties agreed a
timetable for the exchange of affidavits and that no
disciplinary hearing would be held until the application had
been finally resolved, the matter was set down by agreement
on 16 January 2003 when it was fully argued.
[8] The Protected Disclosures Act, Act No. 26 of 2000 provides
wide ranging relief designed, it seems, to encourage a culture
of whistle blowing and in fact its preamble describes its
purpose as to “create a culture which will facilitate the
disclosure of information by employees relating to criminal
and other irregular conduct in the workplace in a responsible
manner by providing comprehensive statutory guidelines for
the disclosure of such information and protection against any
reprisals as a result of such disclosures”. The protection
provided to the whistle blower is set out in section 3 of the
Act. That section which provides that no employee may be
subjected to any occupational detriment by his or her
employer on account or partly on account of having made a
protective disclosure is to be understood by reference to the
definition sections.
Disclosure is defined in the Act as follows:
(i) “disclosure” means any disclosure of
information regarding any conduct of an
employer, or an employee of that employer,
made by any employee who has reason to
believe that the information concerned
shows or tends to show one or more of the
following:
(a) that a criminal offence has been committed,
is being committed or is likely to be
committed;
(b) that a person has failed, is failing or is likely
to fail to comply with any legal obligation to
which that person is subject;
(c) that a miscarriage of justice has occurred, is
occurring or is likely to occur;
(d) that the health or safety of an individual has
been, is being or is likely to be endangered;
(e) that the environment has been, is being or is
likely to be damaged;
(f) unfair discrimination as contemplated in the
Promotion of Equality and Prevention of
Unfair Discrimination Act, 2000 (Act No, 4 of
2000); or
(g) that any matter referred to in paragraphs (a)
to (f) has been , is being or is likely to be
deliberately concealed.
Protected Disclosure is defined to read as follows:
(ii) “protected disclosure” means a disclosure
made to:
(a) a legal adviser in accordance with section 5;
(b) an employer in accordance with section 6;
(c) a member of Cabinet or of the Executive
Council of a province in accordance with
section 7;
(d) a person or body in accordance with section
8; or
(e) any other person or body in accordance with
section 9, but does no include a disclosure-
(i) in respect of which the employee
concerned commits an offence by making
that disclosure; or
(ii) made by a legal adviser to whom the
information concerned was disclosed in
the course of obtaining legal advice in
accordance with section 5.
Where the protected disclosure is made to an employer section 6 of
the act is relevant. That section reads as follows:
(1) 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) Any employee who, in accordance with a
procedure authorised by his or her
employer, makes a disclosure to a
person other than his or her
employer , is deemed, for the
purposes of this Act, to be making
the disclosure to his or her
employer.
Impropriety is defined to incorporate conduct which falls within the
categories of disclosure in the definition and reads as follows:
“impropriety” means any conduct which falls within
any of the categories referred to in paragraphs (a)
to (g) of the definition of “disclosure”, irrespective
of whether or not-
(a) the impropriety occurs or occurred in the
Republic of South Africa or elsewhere; or
(b) the law applying to the impropriety is that of
the Republic of South Africa or of another
country.
Occupational detriment is defined as follows:
“occupational detriment”, in relation to the working
environment of an employee, means:
(a) being subjected to any disciplinary action;
(b) being dismissed, suspended, demoted,
harassed or intimidated;
(c) being transferred against his or her will;
(d) being refused transfer or promotion;
(e) being subjected to a term or condition of
employment or retirement which is
altered or kept altered to his or her
disadvantage;
(f) being refused a reference, or being
provided with an adverse reference,
from his or her employer;
(g) being denied appointment to any
employment, profession or office;
(h) being threatened with any of the actions
referred to paragraphs (a) to (g)
above; or
(i) being otherwise adversely affected in
respect of his or her employment,
profession or office, including
employment opportunities and
work security.
In addition to the aforegoing, the act has a section dealing with general
protected disclosures. It is section 9 and it reads as follows:
(1) Any disclosure made in good faith by an
employee-
(a) who reasonably believes that the
information disclosed, and any
allegation contained in it, are
substantially true; and
(b) who does not make the disclosure for
purposes or personal gain,
excluding any reward payable in
terms of any law;
is a protected disclosure if-
(i) one or more of the conditions referred to in
subsection (2) apply; and
(ii) in all the circumstances of the case, it is
reasonable to make the disclosure.
(2) The conditions referred to in subsection (1)(i)
are-
(a) that at the time the employee who makes
the disclosure has reason to believe
that he or she will be subjected to an
occupational detriment if he or she
makes a disclosure to his or her
employer in accordance with section 6;
(b) that, in a case where no person or body is
prescribed for the purposes of section 8
in relation to the relevant impropriety,
the employee making the disclosure
has reason to believe that it is likely
that evidence relating to the
impropriety will be concealed or
destroyed if he or she makes the
disclosure to his or her employer;
(c) that the employee making the disclosure
has previously made a disclosure of
substantially the same information to-
(i) his or her employer; or
(ii) a person or body referred to in section
8, in respect of which no action
was taken within a reasonable
period after the disclosure; or
(d) that the impropriety is of an exceptionally
serious nature.
(3) In determining for the purposes of subsection
(1)(ii) whether it is reasonable for
the employee to make the
disclosure, consideration must be
given to-
(a) the identity of the person to whom the
disclosure is made;
(b) the seriousness of the impropriety;
(c) whether the impropriety is continuing or is
likely to occur in the future;
(d) whether the disclosure is made in breach of
a duty of confidentiality of the
employer towards any other
person;
(e) in a case falling within subsection (2)(c),
any action which the employer or
the person or body to whom the
disclosure was made, has taken,
or might reasonably be expected
to have taken, as a result of the
previous disclosure;
(f) in a case falling within subsection (2)(c)(i),
whether in making the disclosure
to the employer the employee
complied with any procedure
which was authorised by the
employer; and
(g) the public interest.
(4) For the purposes of this section a subsequent
disclosure may be regarded as a
disclosure of substantially the
same information referred to in
subsection (2)(c) where such
subsequent disclosure extends to
information concerning an action
taken or not taken by any person
as a result of the previous
disclosure.
Remedies are provided in section 4(1) and (2) which reads as follows:
(1) Any employee who has been subjected, is subject
or may be subjected, to an occupational detriment
in breach of section 3, may-
(a) approach any court having jurisdiction,
including the Labour Court established by
section 151 of the Labour Relations Act, 1995
(Act No. 66 of 1995), for appropriate relief; or
(b) pursue any other process allowed or
prescribed by any law.
(2) For the purposes of the Labour Relations Act,
1995, including the consideration of any matter
emanating from this Act by the Labour Court-
(a) any dismissal in breach of section 3 is
deemed to be an automatically unfair
dismissal as contemplated in section 187
of that Act, and the dispute about such a
dismissal must follow the procedure set
out in Chapter VIII of that Act; and
(b) any other occupational detriment in breach
of section 3 is deemed to be an unfair
labour practice must follow the procedure
set out in that Part: Provided that if the
matter fails to be resolved through
conciliation, it may be referred to the
Labour Court for adjudication.
The Labour Relations Act has been amended since the promulgation of
the Protected Disclosures Act 2000 to incorporate the right not to be
subjected to an unfair labour practice in the body of the Act rather
than in a schedule to it and section 191(13) is relevant in this context.
It provides as follows:
(a) An employee may refer a dispute concerning an
alleged unfair labour practice to the Labour
Court for adjudication if the employee has
alleged that the employee has been
subjected to an occupational detriment by
the employer in contravention of section 3 of
the Protected Disclosures Act, 2000, for
having made a protected disclosure defined
in that Act.
(b) A referral in terms of paragraph (a) is deemed to
be made in terms of subsection (5)(b).
[9] The powers conferred upon this court are expressed in wide
terms so that any employee who has been subjected, is
subject or may be subjected to an occupational detriment in
breach of section 3 may approach the Labour Court for
appropriate relief. Since conciliation is a pre-requisite before
this court can grant final relief, in matters of urgency where
the occupational detriment will occur unless the employer is
interdicted and restrained, “appropriate relief” must
therefore include the power to grant an interim interdict
pending the resolution of the underlying dispute. The court
only has jurisdiction to determine the underlying dispute once
the conciliation process has run its course. This is
nonetheless the type of case where the court clearly has the
power to order the status quo to be preserved or restored
pending determination of the main dispute.
[10] At common law a court’s jurisdiction to entertain an
application for an interim interdict depends on whether it has
jurisdiction to preserve or restore the status quo. It does not
depend on whether it has jurisdiction to decide the main
dispute.
Airoadexpress Proprietary Limited v The Chairman, Local Road
Transportation Board, Durban and Others 1986 (2) SA663 (A),
National Gambling Board v Premier KwaZulu-Natal and Others
2002 (2) SA715 (CC) at 731B.
In such a situation the court simply determines whether the Applicant
has a prima facie right to the relief that is to be sought in the court
having jurisdiction to deal with it. This court has accepted that it has
jurisdiction to grant interim interdicts in circumstances similar to those
which arise in the present case ( Venter v Automobile Association of SA
(2000) at 21ILJ675 (LC) at 677E – 678B.
[10] The test applied by a court when an interim interdict is sought is
well known. The Applicant has to establish:-
(a) a clear right or a right prima facie established though
open to some doubt;
(b) a well grounded apprehension of irreparable harm if
the interim relief is not granted and the ultimate
relief is granted;
(c) a balance of convenience in favour of the granting of
interim relief; and
(d) the absence of any other satisfactory remedy.
Where the Applicant cannot show a clear right, and more
particularly where there are disputes of fact relevant to a
determination of the issue as to whether the Applicant’s right
is prima facie established though open to some doubt, the
court approaches the matter by taking the facts set out by the
Applicant together with any facts set out by the Respondent
which the Applicant cannot dispute and considers whether
having regard to the inherent probabilities, the Applicant
should on those facts obtain final relief at the trial of the main
action. The facts set out in contradiction by the Respondent
should then be considered and if serious doubt is thrown upon
the case of the Applicant he must fail, but if not then he has
established the requisite prima facie case open to some
doubt. ( Webster v Mitchell 1948(1) SA1186(W) at 1189-90
read with Gool v Minister of Justice and Another 1955(2) SA
682(C) at 687-688; Spur Steak Ranches Limited v Saddle
Steak Ranch 1996(3) SA706(C) at 714C-H.
[11] The Applicant’s founding affidavit establishes that disclosures
were made to the Respondent on four main issues. The
extent and the detail provided at the meetings on the 14 th
and 15 th November 2002 are disputed although in general
terms it appears that the information which was ultimately
incorporated into the report was disclosed. In the report the
information that was disclosed and upon which reliance is
placed is the following:-
• “That the General managers secretary, acting as a
shipping agent, visited the USA with the purpose
of recovering Swartklip stock. This was authorised
the Denel Group Marketing Director on 13/08/02.
The trip was however extended beyond this
approval and a further airline ticket was
acquired. The trip included unapproved (by
Denel) stops at Miami to visit a friend, and to
Orlando for a Disneyland tour. This accounted
for 6 of the 10 days in the USA and was paid for
by Swartklip. A further R11,000 expenses were
claimed on return.
Udomo Travel tax invoice 8353 and 8411 processed through Qmuzik
ref numbers ADUPQ and UDUFX should be audited in this regard.
• Awarding of civil and professional contracts to
acquaintances. In the case of civil contracts, this
has been facilitated by the transferring of
approval for this function to HR from Engineering.
The HR Executive and the General Manager share
a long history outside Swartklip and their
relationship is possibly more supportive of
unethical practices. In this regard, contract have
been approved despite these not being the least
expensive, work being of an unsatisfactory
standard, and contractor documentation not being
in order, to family members of the General
managers secretary. These included her now
estranged husband and her brother-in-law. Work
has previously been done on the General
Managers private investments (houses) by the
same contractor.
Employees are “requested” by the General Manager to
accommodate contractors, where these contractors have an
association with the General Manager. Mrs Mercia Isaaks, a member
of the Gambling Board with which the General manager is
associated, has been accommodated in the provision of pathological
services, and a trainee doctor, the son of a gambling Board member,
has been recommended for work in the Swartklip Clinic. This did not
materialise due to strong opposition by the line manager responsible
for the Clinic.
• Governmental officials responsible for the
awarding of contracts, namely Messrs A Nkulhu
and Z Ramu, were entertained at Swartklip
expense on a number of occasions. These
included weekends in local hotels, vehicles, air-
fares to the Eastern Cape, and attendance of ANC
conferences. Amongst other unsourced
documentation, Qmuzik requisitions AAQSS,
ABGVX, ABLXI, and ABLXJ refer.
• Conducting of personal business while utilising
Swartklip resources. The General Manager
promotes a relatives dental supplies enterprise
while overseas, has used the now HR Executive to
audit video outlet financial accounts, and routinely
entertain guests who possibly have little relevance
to Swartklip Products."
[12] To qualify for protection disclosures have to be made bona
fide. Although the disclosures are made in the process of
what appears to be a campaign by employees to resolve
difficulties they have with the management style of the
general manager and designed to try and achieve his
removal or transfer from the division at which they are
employed, this in itself does not seem to me to be sufficient
reason to find that the disclosures have not been made bona
fide. Prima facie they appear to be based on information
which is documented and supported and although there may
be adequate explanations and the reasons for providing the
information may go beyond merely wishing to draw these
matters to the attention of the management of Respondent,
nonetheless in my assessment at a prima facie level the
Applicant has established that the disclosures were made
bona fide.
The disclosures reveal a breach of legal obligations, possible
criminal conduct and in my view amount to a protected
disclosure as defined or under the general protected
disclosures set out in section 9 of the act.
[13] The Applicant was suspended from his employment on the
day following the day on which he lodged the report and was
subsequently charged with misconduct in terms of a letter
addressed to him instructing him to attend a disciplinary
enquiry. The contents of the letter are set out below:
“NOTICE TO ATTEND A DISCIPLINARY ENQUIRY
This letter serves to advise you that a disciplinary enquiry has been convened to
be held on Wednesday 11 December (to continue on 12 December if necessary)
2002 at 10H00(am) at Swartklip in the Donald Conference Room . The purpose of
the enquiry is to consider the truth or otherwise of the following allegations of
misconduct against you.
1. Abuse of company facilities and working time / Breach of the
Company’s Information Systems and Security Policy in that it is alleged
that, over an extended period since at least February 2002 and during
working hours:
1.1 you repeatedly and extensively visited pornographic sites on
Internet through the Company’s computer systems and
facilities;
1.2 you used the company email to receive and / or send
pornographic, sexist or other unsavoury messages and / or
images.
2. Racism in that, in your discussion with the General Manager and
Executive: Operations on 14 November 2002, you stated words to the
effect that you had consulted lawyers and psychologists to determine /
analyse the general manager’s way of thinking / reasoning as a
Coloured person as opposed to ‘the norm’ and you implied that his
alleged bad management style and practises were connected thereto.
3. Initiating and / or actively participating in a material breach of
confidentiality and dishonest conduct by, on your own admission,
listening in on EXCOM meetings through a cell phone of a member of
EXCOM. Furthermore, this could also constitute a breach of the
National Key Points Act, the compliance with which you are tasked.
4. On you own admission, conspiring with others, including members of
Denel Head office, to achieve or orchestrate the dismissal of the
General Manager.
5. On you own admission, without authority to do so, you accessed other
employees’ emails and information from the company’s computer
systems and electronic communications medium. It is alleged that
these actions were outside of your prescribed employment functions
and constitutes a breach of confidentiality and possibly the right to
privacy of certain employees.
6. On your own admission, without authority to do so, you shared
companyrelated information with persons outside the Company,
being:
6.1 Mr Matakata, who is currently involved in legal action against the
Company; and / or
6.2 Mr Fezile Calana, who you have advised us, is also intending on
taking legal action against the Company; and / or
6.3 Mr B Sehlapelo.
taking legal action against the Company; and / or
6.3 Mr B Sehlapelo.
It is alleged that this no only constitutes a serious breach in
confidentiality but also a breach in security.
7. Dishonestly alternatively recklessly inciting employees against the
Company and its senior management in that you sought to induce
employees (including J Loubser and E Cronje) to support you
‘concerned group’s request for an external investigation of
irregularities amongst senior management by falsely representing to
the employees that
the focus of the investigation was the accident at the workplace, when it
was not.
In respect of the allegations in charges 2 to 6 above, the Company has relied on
the representations you made to senior management on 14 and 15 November
2002. Should these representations in due course prove to have been false the
Company reserves the right to deal therewith in a further charge of dishonesty
and / or misrepresentation.
The Company regards the above allegations, if they are proven, in a very serious
light and with grave concern. The alleged conduct constitutes serious
misconduct, which no only impacts on the integrity of the company, but also may
threaten national security. It will also be alleged that, if the allegations are proven,
your conduct has broken the trust essential to the continuation of the employment
relationship and you should be aware that an adverse finding against you in
respect of one or more of the allegations might result in your dismissal.
For the purposes of this enquiry and in the interests of expediting the matter, the
Company will confine itself to the above allegations. All the Company’s rights to
proceed against you in respect of any other alleged misconduct or actions which
might come to light and / or in respect of which the Company might secure
evidence are fully reserved.
You are advised that the enquiry will be chaired by an external chairperson, Mr T
You are advised that the enquiry will be chaired by an external chairperson, Mr T
Leholo. You will be given a full opportunity to defend yourself against the
allegations as set out above. In that regard, you will be afforded the opportunity
of crossexamining any witnesses who gives evidence against you and of
examining any documentary evidence which might be used against you. You will
be entitled to call witnesses in your favour both in relation to the allegations and,
in the event of your being found guilty, in mitigation of the penalty.
If you wish to make use of an interpreter, you are required to notify the Company
immediately, so that one may be provided. You are also requested to inform the
Company of the identities of any witnesses you intend calling, so that
arrangements may be made for their availability at the hearing.
You are entitled to be represented at the enquiry by a shop steward if you are a
union member, alternatively a fellow employee of your choice.
Should you fail to attend the enquiry without reasonable excuse, the enquiry will
proceed in your absence and a finding may be made in your absence.
Should this notice not afford you sufficient time to prepare yourself, then you are
required to immediately contact me in order that, if your request is reasonable, a
suitable alternatively date may be arranged.
Yours faithfully
J Jansen
Executive
Swartklip Products”
[14] As can be seen from the charges the Applicant has not been
charged expressly with making disclosures, but has been
charged in relation to those disclosures with misconduct
arising from the manner in which he obtained the information
which led to the disclosures or the purpose to which the
disclosures were to be put. Most of the charges express
themselves as being formulated on the basis of what the
Applicant told Bedford at the discussions he had with the
Applicant on the 14 th and 15 th November. The letter
specifies that should the disclosures “in due course prove to
have been false the company reserves the right to deal
therewith in a further charge of dishonesty and/or
misrepresentation”. The Applicant was also charged with
accessing pornographic sites on the internet and using e-mail
to send pornographic, sexist or other unsavoury messages
and/or images. The Applicant is warned that a finding of
guilty in respect of one or more of the allegations in the letter
could result in his dismissal.
[15] There is a sharp dispute of fact on the papers as to what the
Applicant actually said at the meeting on the 14 th and the
further meeting on the 15th November 2002. Mr Bedford has
testified to the Applicant having disclosed that he used
unlawful means to obtain the information. The Applicant
denies this vehemently and explains what it is that he did say
and which has been misconstrued by Mr Bedford in his
affidavit. It is not possible in my view to resolve this dispute
on the papers. The Respondent relied heavily upon the fact
that the investigations which commenced after the Applicant
was suspended revealed misconduct in relation to his use of
the internet. The record was burdened with thousands of
internet references to reflect access to sites bearing names
which reflect probable erotic content on those sites. A
printout of e-mails received by the Applicant after his
suspension – his mailbox was apparently investigated without
his consent – indicated that he received a great deal of spam
mail with an erotic content. The Applicant did not deny that
he had access to erotic sites but pointed out that this had
been widespread in the organisation to the extent that a
notice was sent warning the people not to do so. He suggests
that the evidence that has been produced of the two year
history of his internet access to reflect the fact that he had
visited these sites was in the context an indication that he
was being victimised and singled out for punishment because
he had made the disclosures rather than because the so-
called misconduct had been discovered. He points out that
the effort that went in to analysing his internet usage was
odd since it was plain that the problem was widespread and if
a similar investigation had been done with regard to other
members of management similar results he suggests would
have been forthcoming. It seems to me that the charge
relating to internet usage is a two-edged sword. At the one
level it may well be that it has nothing whatever to do with
the fact that he made disclosures, but on the other it does
raise questions of why it was brought at this time and in
these circumstances.
[16] At a prima facie level I am satisfied that the Applicant has
established a link between the charges which have been
brought against him and the fact that he made disclosures.
The timing supports his complaint on the probabilities as does
the introduction of the charge relating to his internet usage
and, it is clear from the letter itself that the charge sheet is
based largely on information which the Applicant himself
provided at the time when he was asked by Bedford to
disclose what it is that he intended reporting to the board.
The Applicant has in my opinion established a prima facie
case. The Respondent’s reply does not cast sufficient doubt
upon the case established by the Applicant to justify the
refusal of relief on that ground. I am therefore satisfied that
the Applicant has established a prima facie case open to
some doubt.
[17] It was argued on behalf of the Respondent that the Applicant
will not suffer occupational detriment by simply being
subjected to the disciplinary enquiry. It was contended that
the term disciplinary action in the definition did not include
an enquiry but rather a sanction of a lesser kind than that set
out in subparagraph (b) of the definition. The term is not
defined and in my view is wide enough to include a
disciplinary enquiry. There is considerable prejudice in being
faced with such an enquiry. The Applicant has also been
informed that if he is found guilty he may be dismissed and
accordingly has been threatened with dismissal in the notice
and in the process of the disciplinary enquiry. In my view the
disciplinary enquiry the Applicant faces is disciplinary action
as contemplated by the Act and so the only remedy available
to the Applicant to protect his right conferred by section 3 of
the Act would be the interim interdict which he presently
seeks. Apart from delay and the fact that the Respondent
has suspended the Applicant on full pay and will thereby be
prejudiced by such delay the Respondent could not advance
any other argument as to why the balance of convenience did
not favour the granting of an interim interdict.
[18] The Applicant clearly had no other remedy and in my view
the balance of convenience favours the granting of an interim
interdict.
[19] In order to ameliorate the prejudice to the Respondent I have
incorporated a provision in the order I make which renders
the interim order conditional upon the Applicant launching
proceedings under the Protected Disclosures Act (read with
the Labour Relations Act) for conciliation of the dispute within
a fixed period and, should the dispute not be resolved and
the matter referred to this court, for the parties to be granted
leave to seek a directive from the Judge President on the
basis of my finding that the matter is to be treated as one of
urgency and be afforded priority in having it set down for
hearing. I have discussed the matter with the Judge
President and he has had sight of the Order I propose making.
An Order is accordingly granted in the following terms:
1. The Respondent is interdicted from proceeding with any
disciplinary action or enquiry against the Applicant regarding
any of the allegations contained in the notice to attend a
disciplinary enquiry addressed to the Applicant and dated 6
December 2002 pending the determination of an unfair
labour practice dispute between the parties as to:-
1.1. the Respondent’s decision to suspend and relieve
the Applicant from his duties as employee of the
Respondent with effect from 20 November 2002;
and/or
1.2. the proposed disciplinary proceedings against the
Applicant regarding the allegations contained in the
said notice.
2. This interdict shall lapse if the Applicant has not launched
proceedings contemplated in paragraph 1 within 10 days of
the grant of this order;
3. The Bargaining Council for the Chemical Industry, if it has
jurisdiction in the matter, or the CCMA, if it does not, is
directed to give the matter priority and set it down for
conciliation as soon as it is able to do so;
4. The parties are given leave, should the dispute not be
resolved at conciliation, to approach the Judge President for
directions for the expeditious hearing of the trial in respect of
the above dispute once pleadings have closed and a pre-trial
conference has been held;
5. The costs of this application are reserved for decision by the
court hearing the trial and should the dispute be resolved by
agreement then there shall be no order as to costs.
_____________________
PILLEMER, AJ
Date of hearing: 16 January 2003
Date of Judgment: 30 January 2003
For Applicant: Mr I C Bremridge, instructed by Malcolm
Lyons and Brivik Inc
For Respondent: Mr Stelzner, instructed by Sonnenberg
Hoffman and Galombik