The terms “protected disclosures” or “whistleblowing” are not new phenomena to the employment law landscape, but there is often great uncertainty about how protected disclosures are dealt with in practice, and the lengths to which our judiciary would go to protect an employee’s rights in these cases. The case of Railway Safety Regulator v Kekana [2024] 1 BLLR 40 (LAC) serves as an excellent example.
What is a protected disclosure and how is it governed?
A protected disclosure refers to a situation where an employee passes on or reports information about any wrongdoing that they have witnessed or experienced at their workplace. Since protected disclosures are usually made in relation to serious matters in the workplace, our legislature has ensured that that these disclosures are encapsulated by the relevant legislation. For example, the Protected Disclosures Act 26 of 2000 affords protection to employees fearing reprisals due to them blowing the whistle on their employers, regardless of whether the disclosure was made to authorities within the company or outside of it. More importantly, employees are also protected by sections 186(2)(d) and 187(1)(h) of the Labour Relations Act. Section 186(2)(d) states that it would be an unfair labour practice for an employer to impose occupational detriment on an employee on account of them having made a protected disclosure in terms of the Protected Disclosures Act. On the other hand, section 187(1)(h) states that any dismissal of an employee based on their disclosures in terms of the Protected Disclosures Act would be an automatically unfair dismissal.
Case Study
In the case of Railway Safety Regulator v Kekana [2024] 1 BLLR 40 (LAC), the employee, a senior manager, lodged a grievance about the CEO’s alleged unlawful conduct. The employee lodged their grievance as soon as they realised that the CEO had sent an unqualified investigator without any experience to investigate a train incident together with another contractor, and this same investigator issued an order prohibiting the setting up of a commission of inquiry when a second accident occurred. After this grievance was lodged, the employee was suspended, a disciplinary hearing was held for the employee, and he was subsequently dismissed. The employee referred an unfair dismissal dispute to the CCMA and Labour Court, and the Labour Court ordered that the employee be reinstated. The employer took the matter on appeal to the Labour Appeal Court and argued, among other things, that the Labour Court lacked jurisdiction to determine an automatically unfair dismissal dispute as it had not been proven that the dismissal was related to a protected disclosure made by the employee.
The Labour Appeal Court found that, if an employee demonstrates a prima facie case that they made a protected disclosure within the confines of the Protected Disclosures Act, and there is causal link between their dismissal and their protected disclosure, then the employer is required to prove that the dismissal was for a fair reason. In this case, the Labour Appeal Court was convinced that the employee had established this causal link, as the disciplinary action was taken against him seven days after the disclosures were brought to the employer’s attention. Moreover, the fact that the employee was found guilty at a disciplinary inquiry which he could not attend due to ill health, coupled with the fact that the recommendation of an appeal chairperson that the matter be heard by another person was rejected, also did not bode well for the employer in this case.
Conclusion
Employers are advised to tread carefully when instances of protected disclosures arise in their workplace, especially since the onus that an employee would bear in these cases is easily dischargeable. Employers should note that any disciplinary action taken against employees for reasons even remotely
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