EMPLOYEES WHO BLOW THE WHISTLE ARE PROTECTED

EMPLOYEES WHO BLOW THE WHISTLE ARE PROTECTED

The Protected Disclosures Act no. 26 of 2000 (PDA) protects employees from reprisals as a result of having blown the whistle on the employer. This applies whether the disclosure in question is made to authorities within or outside of the company/organisation concerned.

Under the PDA both employees and employers are protected. That is, employees are protected from reprisals when making disclosures in good faith. and employers are, to a limited extent, protected from employees who make unfounded and malicious disclosures. Therefore, while the PDA encourages genuine disclosures it requires the employee, when making an external disclosure, to at least hold a genuine belief that the employer has acted wrongly. 

Whistle blowing employees are also protected by sections 186(2)(d) and under section 187(1)(h) of the Labour Relations Act (LRA). The former section classifies as an “unfair labour practice” any employer conduct short of dismissal resulting in “an occupational detriment” to an employee who has made a protected disclosure as per the PDA. The maximum compensation awarded to an employee successful in such a claim would be 12 months’ remuneration.

The latter section of the LRA makes it automatically unfair for an employer to dismiss an employee for having made a disclosure protected in terms of the PDA. While few such cases have been reported in labour law it appears that the courts are trying to look after the interests of both employers and employees. 

In Global Technology Business Intelligence (Pty) Ltd vs CCMA and others (2005, 5 BLLR 487) the Labour Court found that the employee’s report to his lawyer of alleged unfair discipline did not fall under the definition of a disclosure for purposes of the PDA. The Court therefore refused to assist the employee.

In a 2006 case the Minister of Justice is reported to have been taken to the Labour Court for removing Mike Tshishonga, a former deputy director-general, from office after Tshishonga had blown the whistle on the Ministry. The Sunday Times of 7 January 2007 reported on page 1 that the Minister of Justice as well as a then deputy director-general of Justice were taken to the Labour Court for removing Tshishonga after he exposed alleged corruption in the liquidation industry and alleged nepotism on the part of the Minister of Justice. According to The Sunday Times’s report the Court found that:

  • Tshishonga had been sidelined after refusing to appoint a friend of the Justice Minister
  • He was later axed after making public disclosures
  • The fact that the Minister and the former director-general had failed to testify in court aggravated the claim made against them
  • It was not right that the Public Protector, Auditor-General and Minister in the Presidency had failed to probe the allegations
  • The dismissal of Tshishonga was “vicious”
  • The Justice Department was required to pay Tshishonga 12 months salary in compensation as well as his legal costs.

 

In Baxter v Minister of Justice and Correctional Services and others
[2020] 10 BLLR 968 (LAC) the employee was dismissed after he became involved in a protracted dispute with the Regional Commissioner. The employee had alleged at Labour Court that he had been dismissed for disclosures he had made about manipulation of the selection of five candidates for vacant positions. The Labour Court found against the employee.

The Labour Appeal Court found that the appellant’s disclosures related to irregularities in the recruitment and selection processes and, accordingly, constituted protected disclosures. Even if some of his allegations had been made for an ulterior motive, it did not follow that he had acted in bad faith; his disclosures were not tainted by dishonesty and their contents were for the most part true.

The Court noted that the department had led no evidence relating to the charges of misconduct. It was apparent, however, that the remaining four charges on which the appellant had been found guilty were implausible and trivial and designed to cover the true reason for his dismissal.

The appeal was upheld with costs and the appellant was awarded compensation equal to 18 months’ remuneration. 

In view of the above employers are advised to tread very carefully before acting against any employee who makes allegations involving employer wrongdoing.

To book for our 17 September webinar on WINNING AT THE CCMA IN THE COVID ENVIRONMENT please contact Ronni at [email protected] or on 0845217492 or (011) 782-3066.

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: [email protected]labourlawadvice.co.za. Website: www.labourlawadvice.co.za.

THE POWERS OF CCMA COMMISSIONERS

THE POWERS OF CCMA COMMISSIONERS

In the interests of resolving labour disputes CCMA commissioners have been given a wide variety of powers including the power to:

 

  • Subpoena witnesses and documents

 

  • On authorisation, enter and inspect any premises on which any relevant document or other object is to be found

 

  • On authorisation, remove and inspect any relevant document or other object

 

  • Take from persons on the premises any statement relevant to the matter

 

  • Make a finding that a person is in contempt of the CCMA

 

  • Attempt to settle labour disputes amicably

 

  • Hear evidence at arbitration hearings

 

  • Issue arbitration awards

 

  • Award employees reinstatement or compensation in respect of disputes that the LRA allows the CCMA to arbitrate

 

  • Dismiss applications lodged with the CCMA

 

  • Make default awards against employers who fail to attend arbitration hearings

 

  • Make rulings on matters such as:

 

  • The jurisdiction of the CCMA to hear specific matters

 

  • The right of parties to be represented at conciliation and arbitration hearings

 

  • Applications for variation or rescission (cancellation) of an arbitration award

 

Specifically, amongst the most important and most frequently used powers that CCMA commissioners have are to decide whether a dismissal is fair or not. In deciding whether a dismissal is fair the commissioner has the power to decide whether a dismissal for misconduct was the appropriate sanction in terms of item 7(b)(4) of Schedule 8 of the LRA. This means that, even where the employer proves conclusively that the employee was guilty of the misconduct, the commissioner still has the power to decide whether the dismissal was a fitting punishment or whether some other corrective action was appropriate.

 

In the light of this power conferred by the LRA for commissioners to decide on the appropriateness of the dismissal sanction employers, trade unions, employees and other interested parties have become confused by the finding of the Supreme Court of Appeal in the case of Rustenburg Platinum Mines Limited vs CCMA and Others (SCA case number 598/05 as reported in CLL Vol.16 No. 4 November 2006). In this case a Mr Sidumo was dismissed for failing to do his duty as a security patrolman. One of the several reasons that the CCMA arbitrator overturned the dismissal was that Sidumo had, in mitigation, a clean disciplinary record during a service period of 15 years.

 

The Supreme Court of Appeal found that:

 

  • Even if the commissioner advances reasons (such as mitigating circumstances) that validly suggest that dismissal might not be appropriate, this does not mean that the dismissal must be overturned if there are other factors that militate in favour of dismissal;

 

  • CCMA commissioners do not have the power to replace dismissal decisions made by employers with other corrective action such as written warnings;

 

  • CCMA commissioners should not, without compelling reasons, second guess employers who have decided to dismiss employees.

 

The meaning of this finding is not that CCMA arbitrators are prohibited from overturning dismissals. Rather, the decision discourages commissioners from overturning dismissals without strong reasons.

 

While employers are hailing this decision as a victory they should not interpret it to mean that they can now impose the dismissal sanction as they please. There still has to be a sound reason to justify the dismissal decision as well as a proper disciplinary procedure. This must include a solid rationale as to why the mitigating circumstances failed to prevent dismissal.

 

To book for our 17 September webinar on WINNING AT THE CCMA IN THE COVID ENVIRONMENT please contact Ronni at [email protected] or on 0845217492 or (011) 782-3066.

 

THE POWERS OF CCMA COMMISSIONERS

BCEA and LRA GANG UP ON EMPLOYERS

The Basic Conditions of Employment Act (BCEA) entitles most employees to certain minimum rights as regards their terms and conditions of employment. These rights include, amongst others the right to:

 

  • be remunerated for work done
  • be given vacation leave, sick leave, maternity leave and family responsibility leave
  • be paid for overtime worked
  • lunch breaks
  • weekly and daily rest periods
  • night work allowances
  • public holidays
  • salary advices and written terms and conditions of employment.

 

The BCEA also entitles employees to discuss their terms and conditions of employment with each other. Therefore, disciplining employees for revealing their salaries to each other would be contrary to the law.

 

The Department of Labour (DOL) is required (with the help of the courts) to enforce this legislation unless the employee in question does not fall under the BCEA’s protection because, for example, he/she earns above R12478 per month or is a senior manager. 

 

The DOL employs Inspectors who are required to investigate complaints against the employer and also to carry out routine inspections of the employer’s labour law compliance. Such inspections may be carried out without advance notice and without a warrant (unless the inspection is at a private place of residence. Where the inspector finds that the employer is guilty of, for example, paying employees for overtime worked, the inspector may request an official Undertaking from the employer to rectify this infraction by a deadline date.

 

Should the employer fail to make and/or to carry out such Undertaking the inspector may issue a Compliance Order. Should this order not be complied with the DOL may ask the Labour Court to make the order an order of court. Defaulting employers can then be jailed and/or fined for contempt of court.

 

An employer who has been issued with a compliance order is entitled to lodge an objection with the Director General of Labour (DG). Should the DG uphold the objection the employer is not obliged to comply with the Compliance Order. However, the DG may confirm the order which then obliges the employer to comply. The employer may delay compliance and lodge an appeal against the order at the Labour Court.

 

The DOL is also entitled to prosecute the employer in criminal court if the employer, for example, employs a child below the age of 15 or if the employer undermines, hinders or obstructs the work of a labour inspector.

 

Where the employee does not fall under the protection of the BCEA (e.g. due to his/her position or salary level), he/she may be able to refer any dispute relating to his/her employment contract directly to the Labour Court. The Court has, in fact, indicated its willingness to adjudicate matters referred to it by employees even when the employees have not specifically sued for breach of contract as long as the dispute relates to the employees’ basic employment conditions. 

 

In the case of Minny & another vs Smart Plan CC (2010, 4 BLLR 439) the employees fell outside the protection of the BCEA because they were too senior. They were therefore unable to refer a dispute to the DOL and instead went straight to the Labour Court claiming that the employer had breached the provisions of the BCEA by failing to pay their leave pay. The Court overlooked the fact that the employees had failed to word their claim as a suit for breach of contract. The Court chose to assume that the applicants had intended to lodge such a claim and therefore agreed to hear the case. This shows that employers should beware of believing that they can have matters thrown out due to technicalities.

 

Employers should also beware that, should the employee properly refer a dispute of unfair dismissal to the CCMA under section 191 of the Labour Relations Act (LRA), he/she may add with that dispute, a dispute relating to any payment due to the employee in terms of the BCEA; and the arbitrator may make an award in that regard. In the case of Douglas & others vs Gauteng MEC for Health (2008, 5 BLLR 401) the Court pointed out that section 74 of the BCEA would entitle it to consider a claim for unpaid salaries if such claim were made together with an unfair dismissal claim lodged under section 191 of the LRA. 

 

Due to the comprehensive protections afforded to employees employers should not do anything that could be construed as interfering with employee rights until they have received proper labour law advice

To attend our 23 July 2010 seminar in Johannesburg on WALKING THE LABOUR LAW TIGHTROPE please contact Ronni at [email protected] or on 0845217492 or (011) 782-3066.

GET THE @#&*!!€» OUT OF MY FACE!

GET THE @#&*!!€» OUT OF MY FACE!

When an employer temporarily requires an employee to vacate its premises and
to stop performing his/her duties this is called ‘suspension. The effect of a
suspension is that the employee is not allowed to return to work until the
employer instructs that he/she may do so. Such suspensions normally occur:
 While the employer is investigating misconduct/poor performance allegations
against the employee
 While the employer and/or employee are preparing for a disciplinary hearing
 After the employer has decided that the employee is guilty of misconduct/poor
performance.
In our experience the reasons that motivate employers to suspend employees
include:
 To remove the employee from the workplace as a means of preventing
him/her from causing further harm by repeating the alleged misconduct or
poor performance
 To prevent the employee from interfering with the investigation instituted
against the employee
 To avoid disharmony at the workplace that could be caused due to the
employee’s awareness that he/she is being investigated
 As a result of the employer’s anger. That is, the employer is so furious with
the employee due to his/her alleged actions that the employer wants the
employee ‘out of my sight!’
 As a means of retribution. The employer wishes to humiliate or demean the
employee or otherwise punish him/her for the alleged offence.
Often, especially when the employer evicts the employee in a fit of anger, it is
unclear whether the employee has been suspended (evicted temporarily) or
whether the employee has been fired. This is because the employer shouts at
the employee to ‘get the @#&*!!€» out of my face!’
Regardless of whether such evictions are meant as suspensions or dismissals
the affected employees more often than not go to the CCMA or bargaining
council claiming unfair dismissal and/or unfair suspension. Especially where the

eviction takes place while the employer is in a fit of anger the employer loses the
case.
Labour law does not prohibit employers from suspending employees but does
allow employees to challenge the fairness of suspensions. Section 186(2)(b) of
the Labour Relations Act (LRA) defines as a type of unfair labour practice “the
unfair suspension of an employee”. Section 191(1) allows an employee to refer
an alleged unfair labour practice to the CCMA or to a bargaining council. Where
the employer has suspended the employee for an unfair reason or in an unfair
manner the employer can be forced to pay the employee compensation or lost
wages or to lift the suspension.
In the case of CEIWU obo Khumalo vs SHM Engineering cc (2005, 10 BALR
1009) the employee, a boilermaker was accused of failing to obey an instruction
from his superior and was therefore suspended for six weeks. The employee’s
excuse for defying his superior was that his superior had screamed at him. The
arbitrator found that this was not a sufficient reason for disobeying a reasonable
and lawful instruction and that the employee’s behaviour constituted gross
insubordination. However, the arbitrator found the suspension to be unfair and
ordered the employer to pay the employee for the full period of the suspension.
The arbitrator’s rationale for this was that, while the suspension might have
started out as a “holding” measure, it became punitive due to its unreasonably
long duration.
In the case of Sajid vs Mohammed NO & others (1999, 11 BLLR 1175) the
employee, who worked as an Imam for a mosque, was suspended from duty.
The charges against him included removal of copies of notices, persuading
congregants to make false statements and failure to attend prayers. The Labour
Court found that there was no evidence to prove that there had been a
breakdown in the employment relationship and that the suspension had been
unfair. The Court ordered the employer to lift the suspension.
In the case of MEC for Tourism and Environmental Affairs Free State vs
Nondumo & others (2005, 10 BLLR 974) the employee was suspended after
being charged with several counts of misconduct. The Labour Court found that
the suspension was unfair and ordered the employer to pay the employee
compensation and lost pay amounting to R840 000.
In the light of the above employers are advised to avoid suspending employees
unnecessarily or due to anger and to obtain expert advice before acting against
employees.
To access our debate on thorny labour law topics please go to
www.labourlawadvice.co.za and click on the Labour Law Debate icon in the top
menu.

HEARING CHAIRPERSONS MUST BE IMPARTIAL

HEARING CHAIRPERSONS MUST BE IMPARTIAL

Employers too often get rid of employees for reasons unacceptable in law. Some of these reasons include:
 The employer dislikes the employee for reasons unrelated to the workplace.
 The owner wants a more attractive secretary
 The employee is unwilling to grant her superior sexual favours
 The employee has clashed with a key executive who has threatened to resign
 The employee has reported the employer to SARS, the Department of Labour
or Department of Health for violating the law
 The manager is under pressure to perform and uses the dismissed employee
as the scapegoat for performance problems
 The employer feels that it is time that it shows the workers who is boss and
picks on the first employee who makes a mistake
 The shop steward stands up for the employee’s rights and is labelled as a
trouble maker.
Employers then conspire to get rid of such undesirables through the use of a
number of tricks including:
 Firing the employee orally and then pretending that the employee absconded
 Framing the employee for poor performance or misconduct
 Provoking the employee into committing misconduct
 Setting up a disciplinary hearing where the presiding officer has been primed
in advance to fire the employee.
This latter trick clearly renders the presiding officer biased. This constitutes a
serious breach of the employee’s right to fair procedure. Where the employer is
caught out using such a biased presiding officer the CCMA has no mercy. The

employee is likely to be reinstated with full back pay or to be granted heavy
compensation to be paid by the employer.
Such bias on the part of a disciplinary hearing chairperson can be discovered in
a number of ways including:
 The chairperson grants the complainant (person bringing the case for the
employer) the opportunity to obtain more evidence, take adjournments or
interrupt the employee; but does not grant the employee similar rights.
 The presiding officer ignores evidence brought by the employee
 The chairperson is chosen to hear the matter despite having been the one
who caught the employee breaking the rule.
 The chairperson says things early in the hearing that indicate that he/she has
decided in advance that the employee is guilty.
For example, in the case of Fourie & Partners Attorneys obo Mahlubandile vs
Robben Marine cc (2006, 6 BALR 569) the employee was dismissed for
attempting to remove several frozen chickens that he had hidden in a bucket.
The arbitrator accepted that the employee was guilty of the offence but still found
the dismissal to be unfair. This was primarily because the chairperson of the
disciplinary hearing had revealed his bias by asking the employee at the
beginning of the hearing “do you have an excuse for stealing the chickens?”
In South African Policing Union obo Moorcroft vs South African Police Service
[2018] 11 BALR 1192 (SSSBC) the employee, who had been dismissed for
calling a colleague a “dom apie”, was reinstated. This was partially due to the fact
that the arbitrator found that there was a reasonable apprehension of bias of the
presiding officer because of his historical relationship with the accused.
The fact that arbitrators do not hesitate to punish biased or inept presiding
officers means that employers should:
 resist the temptation to ‘fix’ the outcome of disciplinary hearings in advance
 avoid misusing disciplinary processes to pursue private agendas
 ensure that only impartial and properly trained persons chair disciplinary
hearings.
To access our debate on thorny labour law topics please go to
www.labourlawadvice.co.za and click on the Labour Law Debate icon in the top

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