IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO. JS 803/03
In the matter between:
COMMUNICATION WORKERS UNION First Applicant
ITSHEGETSENG, S Second Applicant
and
MOBILE TELEPHONE NETWORKS (PTY) LIMITED
Respondent
______________________________________________________________________________________
____________________________
JUDGMENT
_______________________________________________________________
CORAM : A VAN NIEKERK AJ
[1] This is the return day of a rule nisi granted after an application was
heard unopposed and as a matter of urgency on 16 April 2003. In terms of
the Order granted on that date, the Respondent (to which I shall refer as
“MTN”) was interdicted from proceeding with disciplinary action against
the Second Applicant until the finalisation of this application. The
substantive relief sought by the applicants is that MTN be interdicted from
proceeding with the disciplinary enquiry pending the adjudication of the
unfair labour practice dispute referred by the applicants to the CCMA on
16 April 2003. The Applicants also seek an order in terms of which the
suspension of the Second Applicant be lifted pending the final
determination of the dispute.
[2] The Applicants seek the relief that they do on the basis that the
Second Applicant’s pending disciplinary hearing and the suspension are
occupational detriments in terms of the Protected Disclosures Act, 26 of 2000
(“the PDA”).
[3] The material facts giving rise to these proceedings are largely
common cause. The Second Applicant is currently employed by MTN as a
supervisor in its business improvement unit. Until some point in early 2003, a
number of temporary employment agencies supplied temporary staff to the unit’s
Gauteng office. In March 2003, it became apparent to the Second Applicant that
in what he alleges constituted a departure from previous practice, supervisors
were given lists of applicants to interview, the overwhelming majority of whom
were supplied by Thlalefang.
[4] On 1 April 2003, a meeting was convened between Mr Innocent
Shandu, the manager of the customer services unit, and the supervisors
engaged in that unit. At some point during the general meeting, at which other
supervisors and members of management were present, the Second Applicant
raised an allegation concerning the preferential treatment of Thlalefang, and was
advised to refer the matter to the Business Risk Unit.
[5] On 4 April 2003, the Second Applicant circulated an email to a
group of persons, some of whom had attended the meeting on 1 April 2003. The
email is the communication relied on by the Applicants as a protected disclosure,
and for that reason, it is quoted in full
‘Hi Moosa/Norman
I would like to raise a open secret concern to your office. In December MTN 173
I would like to raise a open secret concern to your office. In December MTN 173
GP has recruited an number of staff via the following Agencies who are proffered
suppliers, Thlafang, Hola, NAPS, Ikwesi and Quest. From this recruitment we
saw most of Naps, and Hola and Kwesi people coming through but NAPS was
leading the pack. All agencies had Intakes coming through nevertheless, but I
should say upfront that except for Hola and NAPS, the agencies representatives
where no where to be seen on the day of the recruitment. We had Kopano from
Thlalefang continuously calling Vusimusi Masilela about how many candidates
where taken from each agency, and after this disturbing situation we where told
that there is a supervisor or supervisors who gave NAPS a scandal to have their
agents taken in large numbers and some should come forward and confess to
avoid any sanction. We later told that an investigation is going forth. That is fine
and has been accepted by all of us. But what is surprising that Thlalefang has
been having 100% of its candidates being taken all over CS from KZN, PLK to
GP. No such investigation were conducted against supervisors, no concerns
were raised by other agencies about how many recruits from each agency was
done by individual agencies and business business risk was never brought to
see this abnormality. We have currently recruited last week agents from
Thlalefang only and they are now in training, the issue here is is this not bias
shown to one agency, if so why. Should other agencies suffer because
Tlhaklefang did not do a proper job on their candidates the last time? If so why
is the same not done to other agencies in PLK, and KZN where Thlalegfang is in
a big number. The person or persons who lodged a complain, why are they not
complaining now. Who are these faceless complainants?
Personally I smell a rat and think that there are senior people senior
than us, who are losing revenue if Thlalefang is not placing agents at
MTN thus the justification not to make staff permanent. They want to
continue being fat cats and eating. This email is prompted by the
meeting we had as supervisors and management to raise issues of
meeting we had as supervisors and management to raise issues of
concern in running our business. It was noted in that meeting that this
email shall be sent out to raise these issues. I propose a large scale
investigation on the issue of agencies and I please let this be noted that
if it not handled properly the scorpions maybe engaged to conduct and
investigation.”
[6] The persons who whom the email was addressed are engaged in
MTN’s Business Risk Unit. It is not disputed that these persons aside, the email
was circulated to persons who had attended the meeting held on 1 April 2003
and “blindcopied” to other MTN employees, including the Chief Executive Officer
and the Commercial Director.
[7] On 7 April 2003, the Second Applicant, having received no response to his
email sent on 4 April, sent a second email.
[8] On 11 April 2003, the Second Applicant was handed a notice of
suspension, and advised that he would be required to attend a disciplinary
hearing on 17 April 2003. On 14 April 2003, a charge sheet was handed to the
Second Applicant. The charges against him are recorded as –
“1. That you intentionally, deliberately circulated an e
mail insinuating that management of MTN are corrupt
and/or colluding with various employment agencies in
corrupt activities.
2. That you intentionally, deliberately and disrespectfully
engaged in abusive and insulting language in that you
insinuated management of MTN as Fat Cats.
3. That you made unfounded allegations against
management in that you circulated an email alleging
that management is benefiting from recruitment
processes. Through conspiracy, bribery
underhanded dealings with various recruitment
agencies.
4. That you brought the company’s image into disrepute
in that you circulated an email to MTN employees,
which email contained derogatory remarks,
allegations of corruption .
5. That you intentionally and deliberately conducted
yourself in gross insubordination and insolence in that
you circulated an email containing derogatory
remarks against MTN Management and its clients.
6. That you abused company tools of trade and
privileges given to you for purposes of work in that
you used the same tool to circulate an email to MTN
employees, which email has exposed the company
to a huge civil suite by some of its clients.”
[9] On 16 April 2003 the Applicants initiated urgent proceedings in this
Court, and the rule that is the subject of the proceedings was granted.
[10] The crisp issue that the Court is required to decide is whether for the
purposes of these proceedings, the Second Applicant’s communications
constitute a protected disclosure as defined by the PDA. That in essence is the
right on which the Applicants rely to obtain the interdictory relief they seek.
[11] It was not disputed that the Court has the power to grant interdictory relief.
Section 4 (1) of the PDA provides that any employee who has been
subjected, is subject or may be subjected to an occupational detriment in
breach of the statute may approach this Court for appropriate relief. This
Court is entitled by virtue of section 158 (1) inter alia to grant urgent
interim relief, interdicts and orders directing the performance of any
particular act.
[12] The test to be applied in determining was the subject of dispute. Mr Orr,
who appeared for the Applicants, submitted that the test to be applied was
that relevant to an interim interdict, which required the applicants to
establish inter alia a clear right or a prima facie right, although open to
some doubt. The approach adopted by this court to determine an
applicant’s right to interim relief is well established. In Spur Steak
Ranches Ltd v Saddles Steak Ranch 1996 (3) SA 706 at 714B, the
approach commonly applied in this Court, was summarised. This requires
an applicant to establish a clear right or a right prima facie established
though open to some doubt, a well grounded apprehension of irreparable
harm, a balance of convenience in favour of the granting of interim relief,
and the absence of any other satisfactory remedy. The threshold test is
the requirement of a prima facie right established though open to some
doubt. Although this is often stated as a single requirement the enquiry
involved two stages, once the prima facie right has been assessed, that
part of the requirement which refers to doubt involves a further enquiry in
which the Court looks at the facts set up by the Respondents in
contradiction with the Applicants’ case, and if there is a near contradiction
or an unconvincing explanation, then the right will not be protected. If
however, there is serious doubt, the applicant can not succeed (see
Webster v Mitchell 1948 (1) SA 1186 (W) at 1189 and Landman and Van
Niekerk Practice in the Labour Courts A18 to A21).
[13] On the other hand, the requirements for a final interdict require the
applicant to establish a clear right, an injury actually committed or reasonably
apprehended, and the absence of similar protection by any other ordinary
remedy. A final interdict should only be granted in motion proceedings if the
facts stated by the Respondent together with the admitted facts in the Applicant’s
affidavits justifies such an order, unless the Court is justified in rejecting the
allegations or denials by the Respondent on the papers. (See PlasconEvans
Paints v Van Riebeek Paints 1984 (3) SA 623(A) at 634F to 635D.).
[14] Mr Pretorius SC, who appeared for MTN, submitted that the order sought
by the Applicant was in effect a final interdict, albeit one that would
operate for a limited period. It was consequently necessary, he submitted,
for the Applicants to satisfy the test established by PlasconEvans. A final
interdict is a final determination of the rights of the parties. It is intended to
secure the permanent cessation of an unlawful course of conduct. The
Second Applicant has been suspended and has been notified that he is to
attend a disciplinary enquiry. These actions are the subject of the referral
of a dispute to the CCMA, and may well be referred to this Court in due
course if conciliation fails to resolve the dispute. In that sense, these
proceedings are not directed at a final determination of the rights of the
parties. However, if the order sought by the Applicants were to be
granted, MTN would be precluded from proceeding with a disciplinary
enquiry on the basis that the threat of an enquiry had been found to
constitute an occupational detriment. In that sense, the order sought by
the Applicants would amount to a final declaratory order to the effect that
the Second Applicant has suffered an occupational detriment consequent
on a disclosure that is protected by the PDA, even if it is only to operate
pending a final determination by this Court of an unfair labour practice
dispute. Be that as it may, I intend to deal with the matter as an application
for an interim interdict and to apply the approach in Webster v Mitchell.
[15] Section 4 of the PDA provides that for the purposes of the Labour
Relations Act, 66 of 1995 (“the LRA”) any dismissal in breach of the requirement
that employees may not be subject to an occupation detriment by an employer, is
an automatically unfair reason for dismissal. Any other occupational detriment in
breach of the same obligation is deemed to be an unfair labour practice for the
purposes of the same Act. With effect from 1 August 2002, the LRA was
amended to incorporate these provisions into Chapter VIII of that statute.
[16] An occupational detriment is defined in section 1 of the PDA. In relation to
the working environment of an employee, the definition includes being subject to
any disciplinary action, or being dismissed, suspended, demoted, harassed or
intimidated, or being threatened with any of these actions.
[17] “Disclosure’ is also defined in section 1 of the PDA. The definition reads
as follows
“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) …….”
[18] Section 6 of the PDA protects employees who make protected disclosures
to their employers. Subsection (1) reads as follows
“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).”
[19] If a disclosure is made to an employer in terms of section 6 of the PDA, a
number of conditions must be satisfied before that disclosure can be
protected. The person claiming the protection must be made by a person
who is an employee. The employee must have reason to believe that
information in his or her possession shows, or tends to show, the range of
conduct that forms the basis of the definition of “disclosure”. The
employee must make the disclosure in good faith. If there is a prescribed
procedure or a procedure authorised by the employer for reporting or
remedying any impropriety, then there must be substantial compliance
with that procedure. If there is no procedure that is either prescribed nor
authorised, the then the disclosure must be made to the employer. If any
procedure authorised by the employer permits the making of a disclosure
to a person who is not the employer, the employer is deemed to have
made the disclosure. Finally, it seems to me that there ought to be some
nexus between the disclosure and the detriment. I don’t think that it is
necessary, as Mr Pretorius implied, that the detriment be directly linked to
the disclosure in the sense that an employee would be entitled to a
remedy if and only if the detriment threatened or applied by the employer
is so threatened or applied expressly for the making of a disclosure. This
would permit unscrupulous employers to create pretexts upon which to
effect occupation detriments and undermine the purpose of the PDA.
Provided that there is some demonstrable nexus between the making of
the disclosure and the occupational detriment threatened or applied by the
employer, the protections of the PDA should apply.
[20] I agree with the observation by Pillemer AJ in Grieve v Denel (Pty) Ltd
(2003) 24 ILJ 551 (LC) that the PDA seeks to encourage a culture of
whistle blowing. The Preamble to the PDA records that it is incumbent on
every employer an employee to disclose criminal or irregular conduct in
the workplace, and that employees should be protected against reprisals
as a result of such disclosures. Good, effective and transparent
governance by employers is obviously in the broader social interest and
employees should be encouraged, without fear of reprisal, to disclose
information relating to suspected criminal and other irregular conduct by
their employers. It is not insignificant that the PDA was originally
conceived as an integral part of the Open Democracy Bill.
[21] However, as I have noted, the protection extended to employees by the
PDA is not unconditional. The PDA sets the parameters of what constitutes a
protected disclosure, as well as the manner of permissible disclosure by workers.
The definition of “disclosure” clearly contemplates that it is only the disclosure of
information that either discloses or tends to disclose forms of criminal or other
misconduct that is the subject of protection under the PDA. The disclosure must
also be made in good faith. An employee who deliberately sets out to embarrass
or harass an employer is not likely to satisfy the requirement of good faith. It does
not necessarily follow though that good faith requires proof of the validity of any
concerns or suspicions that an employee may have, or even a belief that any
wrongdoing has actually occurred. The purpose of the PDA would be
undermined if genuine concerns or suspicions were not protected in an
employment context even if they later proved to be unfounded. There is no
doubt why disclosures made in general circumstances require in addition to good
faith a reasonable belief in the substantial truth of the allegation. However more
extensive the rights established by the PDA might be in the employment context,
I do not consider that it was intended to protect what amounts to mere rumours
or conjecture.
[22] I am satisfied that in this instance, the Second Applicant’s communications
on 4 and 7 April 2003 fail to meet the conditions for protection established
by the PDA. The disclosure relied on by the Second Applicant as a
protected disclosure was no more than an expression of a subjectively
held opinion or an accusation, rather than a disclosure of information. It is
clear from the judgment in Grieve v Denel that the disclosure considered
worthy of protection in that instance was a disclosure of information that
on a prima facie basis at least, was both carefully documented and
supported. The disclosure was clearly indicative of a breach of legal
obligations and possibly criminal conduct on the part of the employer
concerned. In the present instance, the only information proffered by the
Second Applicant (and this was conceded by his counsel) was that
contained in his email dated 4 April 2003, and in particular his statement
to the effect that Thlalefang was being used as a sole agency to supply
temporary employees. There is no factual basis, however tenuous, in any
of the Second Applicant’s communications to justify the conclusion that
they constituted anything other than his personal opinion that what
appears to amount to a preferred supplier arrangement was improper.
There is no information offered that indicates in the slightest any
impropriety on the part of any member of MTN’s management. The
statement –
“Personally, I smell rat and think that there are people senior than
us who are losing revenue if Thalefang is not placing agents at
MTN and thus the justification not to make staff permanent.”
is not a disclosure of information rather than an unfortunately phrased
expression of the Second Applicant’s personal views.
[23] A further relevant consideration is the fact that the information (such as it
was) contained in the Second Applicant’s email had been communicated to a
general meeting prior to its transmission on MTN’s computer network. The PDA
contemplates and protects disclosures made in private rather than in public. This
is obvious given the potential damage to the reputation of persons against whom
allegations are made, an and integral element of the balance between the
protection of rights to reputations and the protection of free speech in the
workplace.
[24] Finally, there is the related matter of the procedure adopted by the Second
Applicant in making the disclosure on which he relies. The PDA seeks to balance
an employee’s right to free speech, on a principled basis, with the interests of the
employer. The requirement that a disclosure be made through an authorised
channel is an integral element in structuring this balance. The PDA accordingly
establishes as a condition for protection that a disclosure be made in accordance
with a procedure that is either established or authorised. The evidence in these
proceedings discloses the establishment by MTN of an elaborate system for the
reporting of allegations of fraud, including a confidential “hot line”. Commendable
as the procedures established by MTN might be, it is not disputed that the
Second Applicant was advised at the meeting held on 1 April 2003 that he should
Second Applicant was advised at the meeting held on 1 April 2003 that he should
raise the matter of the alleged preference accorded to Thalefang with the
Business Risk Unit. The Second Applicant sought a wider audience. He
addressed his email to his peers and members of MTN’s senior management.
As I have noted above, the requirement of disclosure through an authorised
channel is an important component of the protection accorded to whistleblowers.
There is a difference between the nature and extent of the protections afforded to
internal as opposed to external disclosure. As I have noted above, an internal
disclosure does not require a reasonable belief that the information disclosed
tends to show that any wrongdoing has occurred. A reasonable belief that any
allegation is substantially true is a condition for the protection of any external
disclosure. By requiring substantial compliance with a prescribed or an
authorised procedure, if information disclosed by an employee turns out to be
unfounded, little if any damage will have been done to the external reputation of
the employer or persons against whom allegations have been made. By failing
to comply with the procedure prescribed and/or authorised by MTN for the further
investigation of his allegations, the Second Applicant removed himself from the
ambit of the protection granted by the PDA.
[25] The statements that the Applicants submit constitutes a protected
disclosure do not, for the purposes of these proceedings and on the papers
before me, constitute a protected disclosure contemplated by the PDA. This is
not to say that for the purpose of any unfair labour practice proceedings, after the
leading of evidence that is subjected to crossexamination, a different conclusion
might not be justified. For the purposes of this application however, the
Applicants have failed to establish a clear right, even one that is open to some
doubt.
[26] I make the following order:
1 The Rule Nisi issued on 16 April 2003 is discharged, with costs.
________________________________
ANDRE VAN NIEKERK
Acting Judge of the Labour
Date of hearing: 8 May 2003
Date of judgment: 26 May 2003
Counsel for Applicant: Mr C Orr
Attorneys for Applicant: Cheadle Thompson Haymsom Inc
Counsel for Respondent: Mr P Pretorius SC
Mr K Lengane
Attorneys for Respondent: Webber Wentzel Bowens