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You can't punish or dismiss a whistle-blowing employee...

by , 08 October 2015
An employee has protection when he discloses a workplace crime (The Protected Disclosures Act 26 of 2000 (PDA)). And it's there to make sure all employers and employees disclose any criminal acts in the workplace. As well as any irregular conduct.

And you have a responsibility to a whistle-blowing employee... You can't punish or dismiss him for this.

If you dismiss an employee for doing this, it's an 'occupational detriment'. And it's an automatically unfair dismissal(s 187 of the LRA). It also falls in the definition of unfair labour practice.

But does this mean a whistle-blower can get a court interdict to stop you from having a disciplinary enquiry? In other words, as a preventative step to stop an automatically unfair dismissal? 
This was the issue in one case… Van Alphen v Rheinmetall DenelMunition (Pty) Ltd (C 418/2013) [2013] ZALCCT 21 (21 June 2013). 
Let's have a look…

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The case of the whistle-blower trying to avoid an unfair dismissal…
These are the facts:
  • She said the company didn't deal with customer complaints. And some employees and managers weren't doing their jobs. She also said the Quality Assurance (QA) Department was in 'extreme chaos'.
  • Because of her comments in emails and in two meetings, the company gave her a notice to attend a disciplinary hearing. The charges were for insubordination and incompatibility. This is for causing conflict in the workplace.
  • She went to the Labour Court. She said her complaints fell within the definition of a 'protected disclosure' in the PDA. And the disciplinary hearing was an 'occupational detriment' in terms of that Act. 
  • She wanted the Court to stop the disciplinary hearing.

So, what happened next? Keep reading below....

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The Labour Court outlined the requirements for a successful interdict in the context of the PDA
The Court looked at the requirements of the PDA. They are: 
  1. The disclosure must be more than a subjective opinion or an accusation. It must disclose factual information for it to be protected; 
  2. It must clearly show a breach of legal obligations. It must also be the employer who is committing possible criminal activities; and
  3. Disagreeing with the employer's policy isn't a disclosure of protected information.

After looking at these requirements, the court said she didn't meet these. It said:
  • Her real complaint was about the managing of the QA department not performing.
  • And the QA technicians who report to him, was her perception of 'extreme chaos'. 
  • This wasn't 'criminal or other irregular conduct' inline with the PDA. 
  • It also didn't fall into the definition of a 'disclosure' of an 'impropriety'. 

The court said the following:
  • For it to give her an interdict, she had to show there was a danger of irreparable harm. 
  • It said that any harm she could suffer isn't irreparable. This is because she has the chance to present her case at the disciplinary hearing. And she could give evidence at the hearing.
  • After the hearing, she could challenge the findings at the CCMA. 
  • It also said that there was another solution for cases like this. For example, where the company didn't dismiss the employee yet. It specifies 'any other occupational detriment' – such as a disciplinary hearing – is an unfair labour practice. But in this case, they can resolve it through conciliation. If not, then she can go to the Labour Court.

The court's conclusion… The company hadn't dismissed her and she had to prove she's entitled to protection under the PDA. The Court said she should go to disciplinary hearing. And then give the evidence to show she wasn't guilty of misconduct.
What can you learn from this case?
Not every disclosure is protected disclosure under the PDA. The Act protects specific situations only. Outside of those, employees need to be careful of the allegations they make. 
So… You're safe from employees using the Act to stop you taking action against them.

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