Protected Disclosures Act: Interdicting the employer for ‘occupational detriments’
NEHAWU obo N Phathela v Office of the Premier: Limpopo Provincial Government and Others (LC) (unreported case no J1480/2021, 7-2-2022) (Tulk AJ)
The Protected Disclosures Act 26 of 2000 (PDA), colloquially known as the ‘Whistle-blowing Act’, provides protection to whistle-blowers in the private and public sector who disclose information regarding unlawful or irregular conduct by their colleagues or employers.
The question that arose in the Phathela case was whether the court has the jurisdiction to grant a final order interdicting an employer from disciplining an employee who had allegedly made a protected disclosure.
The employee, without informing her employer, had received gifts from the employer’s service provider. When she finally informed her employer, the employer brought two charges against her namely, that the employee accepted/received gifts from a supplier, and that she failed to disclose in time that she was receiving gifts from such supplier.
The National Education, Health and Allied Workers’ Union (NEHAWU), on behalf of the employee, brought an application for a final order prohibiting the impending disciplinary hearing against the employee on the grounds that she made a protected disclosure and her impending disciplinary action amounts to an occupational detriment and an unfair labour practice.
What is a protected disclosure?
Section 1 of the PDA defines a ‘protected disclosure’ as the disclosure of information by an employee regarding any conduct of an employer or any of its employees, which is criminal or morally opprobrious.
In terms of s 3 of the PDA, an employee who has made a protected disclosure may not be subjected to any occupational detriment by the employer as a result of having made such a protected disclosure. An occupational detriment would be any form of disciplinary action, harassment, intimidation, or any decision or action by the employer that adversely affects the employee.
The truthfulness or accuracy of the disclosure is not a requirement for protection. The test is whether the employee reasonably believed that the information disclosed in good faith was true.
This was confirmed by the Labour Appeal Court (LAC) in John v Afrox Oxygen Ltd  5 BLLR 476 (LAC) where it was held that an onus to prove the accuracy of the information disclosed, would place a burden on the employee higher than that intended by the PDA, which requires merely a reasonable belief, by the employee, that the information is accurate. The same approach was followed in Chowan v Associated Motor Holdings (Pty) Ltd and Others 2018 (4) SA 145 (GJ) where the court held that the employee’s reasonable belief that she was being discriminated against, however inaccurate, coupled with the fact that she acted in good faith, was enough to afford her protection.
Remedies – an approach to interdicts
Section 4 of the PDA sets out remedies available to an employee who has, is, or is about to be subjected to an occupational detriment. It provides, inter alia, that the employee may approach any court with jurisdiction in order to seek ‘appropriate relief or pursue any other process allowed or prescribed by any law’ (Phathela at 8).
Section 191(13) of the Labour Relations Act 66 of 1995 (LRA) confers jurisdiction on the Labour Court (LC) where it is alleged that an employee has been subjected to an occupational detriment that is deemed an unfair labour practice.
In Phathela, the court, as per Tulk AJ at para 7, correctly identified that where the employee is a victim of an occupational detriment short of dismissal, such as being subjected to a disciplinary hearing, such occupational detriment would amount to an unfair labour practice as contemplated in part B of sch 7 to the LRA. In terms of s 4(2)(b) of the PDA, where the occupational detriment amounts to an unfair labour practice, the dispute must be referred for conciliation as per the provisions of the LRA, and if it remains unresolved, then the employee may approach the LC for appropriate relief.
Tulk AJ was essentially applying the principle of stare decisis in following the precedents set in Grieve v Denel (Pty) Ltd (2003) 24 ILJ 551 (LC) and Feni v Pan SA Language Board (2011) 32 ILJ 2136 (LC) where the court held that in terms of s 191(13) of the LRA, where an employee may ‘approach the Labour Court on an urgent basis for an order to prevent or stay a disciplinary hearing. The Labour Court will, however, only issue an interim order pending the final resolution of the dispute to be referred to conciliation’ (Feni at para 18). The court in Feni at para 20 also reiterated that a dismissal in contravention of the PDA is automatically unfair in terms of s 187(1)(h) of the LRA. In terms of s 191(5)(b)(i) of the LRA, once a certificate of non-resolution has been issued, the employee may refer the automatically unfair dismissal dispute to the LC for adjudication.
Tulk AJ did not have to consider the merits of the dispute because the court was not vested with jurisdiction. It would have been just about comical for him to have found that a disclosure by an employee about their own malfeasance and/or other misconduct would amount to a protected disclosure. The legislature could not have envisaged a scenario where an employee could claim immunity against being disciplined by the employer on the ground that the perpetrating recalcitrant employee disclosed that misconduct.
The essence of the Tulk AJ’s judgment is that the employee’s referral of the matter to the LC for a final order was premature. The employee should have sought an interim order pending the outcome of conciliation. With a certificate of non-resolution, the employee could then seek a final order at the LC.