Protected Disclosures and Disciplinary Hearings: Lessons from Recent Case Law

Navigating allegations of misconduct in the workplace becomes significantly more complex when an employee claims to have made a protected disclosure. In terms of the governing legislation in South Africa, such disclosures are regulated primarily by the Protected Disclosures Act 26 of 2000 (PDA), while section 188A(11) of the Labour Relations Act 66 of 1995 (LRA) offers an avenue for employees to request an external disciplinary inquiry under certain circumstances. However, not every disclosure qualifies for protection under the PDA, and not every internal disciplinary hearing can be set aside on that basis. A recent Labour Court judgment that clarifies the scope of protected disclosures, the limitations of invoking section 188A(11), and the ongoing right of employers to manage disciplinary processes internally.

Understanding Section 188A of the LRA and What Constitutes a Protected Disclosure

A protected disclosure refers to a situation where an employee passes on or reports information about any wrongdoing they have witnessed or experienced in the workplace. Given the serious nature of such disclosures, South African legislation ensures appropriate safeguards are in place for whistleblowers.

The Protected Disclosures Act 26 of 2000 (PDA) protects employees who fear reprisal for exposing unlawful or unethical conduct. This protection applies regardless of whether the disclosure was made internally (e.g., to a line manager or HR) or externally (e.g., to the CCMA or relevant regulatory authorities). The law recognises the importance of fostering a culture of accountability, while also shielding employees from victimisation.

Importantly, the Labour Relations Act reinforces this protection through the following provisions:

• Section 186(2)(d): Declares it an unfair labour practice for an employer to subject an employee to an occupational detriment because of a protected disclosure.
• Section 187(1)(h): Provides that any dismissal based on a protected disclosure will be deemed automatically unfair.

In disciplinary contexts, section 188A(11) of the LRA allows an employee who has made a protected disclosure to request that the disciplinary process be conducted externally by the CCMA rather than internally by the employer. This provision is intended to prevent biased processes and ensure fairness where whistleblowing may be a central issue. However, section 188A(11) can only be invoked once a valid protected disclosure has been established in terms of the PDA.

Case Study

In the recent case of Letakgomo v Johnson Matthey (Pty) Ltd (J683/23) [2025] ZALCJHB 240 (31 May 2025), the Labour Court was asked to determine whether the applicant’s report of criminal activity constituted a protected disclosure, and whether his employer’s decision to proceed with internal disciplinary action amounted to an occupational detriment. The applicant held a senior role as plant manager/managing director at Johnson Matthey, a company that manufactures platinum group metals catalytic converters. In 2022, the company noticed significant losses of platinum group metals and initiated both an internal investigation and a police report. In January 2023, the applicant discovered a converter in the possession of his tenant, who admitted the item was stolen. The applicant reported this incident to company officials, believing it could assist with the ongoing investigation. Shortly thereafter, the company suspended him and instituted disciplinary proceedings for gross negligence and recklessness related to his handling of the matter. Just before the disciplinary hearing, the applicant claimed he had made a protected disclosure and sought to invoke section 188A(11) of the LRA, requesting that the hearing be held at the CCMA rather than internally. He further alleged that the company’s decision to proceed with the internal process constituted an occupational detriment under the PDA.

The Court, however, found that the disclosure made by the applicant did not meet the definition of a protected disclosure under the PDA. The reported misconduct, involving an unnamed individual unconnected to the employer, did not implicate the company or its employees in any unlawful activity. As a result, the court held that no valid protected disclosure had occurred.

Additionally, the court reaffirmed that:

• An internal disciplinary hearing does not automatically amount to an occupational detriment;
• The employer retains the right to manage internal discipline in the absence of a credible protected disclosure;
• Simply claiming to have made a protected disclosure does not suspend or nullify the employer’s internal disciplinary processes.

The court dismissed the urgent application and ordered costs against the applicant, cautioning against attempts to delay or derail disciplinary proceedings without legal merit.

Conclusion

Not every report of wrongdoing qualifies as a protected disclosure, and invoking whistleblower protections requires meeting the threshold requirements set out in the PDA. For section 188A(11) of the LRA to apply, there must be a clear, credible link between the disclosure and alleged retaliation by the employer. Employers should ensure that they assess such claims carefully and continue to follow procedurally fair disciplinary processes. Employees, on the other hand, should be aware that only certain types of disclosures will attract legal protection, and that improperly invoking whistleblower laws can lead to adverse cost orders or further disciplinary action. By maintaining a solid understanding of the PDA and section 188A(11), all parties can better navigate complex workplace disputes involving allegations of misconduct, retaliation, and whistleblowing. Understanding these distinctions is essential for both employers and employees to ensure that whistleblowing protections are not misused, while still upholding fair procedure and lawful conduct in the workplace.