Home » Labour Law

Category: Labour Law

Protection of Whistleblowers

Protection of Whistleblowers

The Need For Whistleblowers

The issue of the protection of whistleblowers has become more prominent with the piles of evidence which have been presented to the Zondo Commission of enquiry about corruption, nepotism and straight out theft. If it were not for a few brave individuals who reported the problems in the beginning, it is unlikely that anything would have been exposed.

Consequences and Existing Protection

So the question must be asked: Apart from the moral satisfaction of exposing corruption, are the consequences too serious for most people to even contemplate even thinking of reporting wrongdoing? The answer has to be yes.

If you have dependents who are reliant on your salary for their survival, you cannot afford to lose your job. Does the law protect you? In theory, yes. In practice, no.

The Protected Disclosures Act 26 of 2000 theoretically protects an employee who reports wrongdoing. The problem comes with the mechanism that the employee has to rely on for protection and the potential remedies to protect the employee.

The Reality?

Let’s start with what happens when an employee reports fraud or theft by a fellow employee, especially their manager or someone higher up the line of authority. If they victimised, the Act says they should be moved to another position if possible (away from the person they reported). But what if the employee refuses and/or continues to victimise the employee?

They can take the legal route. This involves first approaching the CCMA for conciliation. In practice this means an enforced 30 days delay before instituting legal proceedings. The CCMA often schedules the conciliation hearing well into the 30 days and then at the hearing if the employer refuses to budge the conciliation fails. Nothing is achieved, other than time wasted. The employee then has to approach the Labour Court for relief. In theory this is an expeditious procedure, but in practice it is not (for an employee being victimised ‘expeditious’ means something different from the meaning given to it by the Labour Court process).

Assuming the employee can afford a lawyer, or has the emotional strength to pursue the case themselves, they will find that it will be several weeks before the matter is ripe for set down, and then it will probably not be heard less than a year later. In the meantime, the employee is still subject to victimisation.

Urgency

It can be argued that the employee can approach the Labour Court on an urgent basis, but there is an inevitable hurdle to be faced in proving urgency. The employer merely needs to say that they never intended to take any action against the employee and there is no urgency. The employee has now wasted time and legal fees and is no better off.

Because an application for an interdict to afford the employee protection is not automatically treated as urgent, it wallows in the same pool as all the other cases with a wait for several months. The employer has no incentive to assist in speeding up the matter.

Employee Left Unprotected

In the meantime the employee is not protected. The employer can go so far as to take disciplinary action against the employee for taking them to court, claiming they are ‘incompatible’. The employee now faces a dilemma: do they back to court on an urgent basis to stop the disciplinary hearing?

It cannot be ignored that the Labour Court has repeatedly warned that it will consider costs orders against employees who try to prevent disciplinary hearings. The argument is that there is a remedy after the hearing if it is irregular, so that should be the correct avenue to take. Does the already victimised (and probably traumatised) employee want to run that risk.

Now the employee has been fired. In theory they are entitled to reinstatement if the employer cannot prove that the dismissal was fair. But, obviously, if they are alleging incompatibility they will be claiming that they cannot reinstate the employee. Even if they outright concede the merits, they can still argue that reinstatement is inappropriate because there is a breakdown in trust.

Compensation Enough?

The alternate remedy is that the employee is given compensation for two years’ salary.  (Dismissal in breach of the Protected Disclosures Act would be an automatically unfair dismissal.) That may sound attractive, except in practice it is not. If they employee is on the lower-income scale, two-years’ salary is not going to amount to much in a struggling economy where finding jobs is so difficult.

Also, the employee now has to institute additional proceedings in the Labour Court. The initial application for an interdict must now fail, as the employee is no longer employed and any protection would be moot. So the, by-now-bewildered, employee has to start the process all over again, waiting another year for a court date. It could easily take two years before the unfair dismissal case is finalised. That’s if the employer doesn’t appeal, as that will take anything from one to two years extra. In the meantime, living expenses and paying legal fees eat up the two-years’ salary as compensation.

Onus

Even if the case runs to trial, the employee still has the onus of proving the protected disclosures. This is relatively easy because the fact of having made the disclosure and what was disclosed are objective facts, but the onus is also on the employee to prove that she or he made the disclosure in good faith. That leaves the employee open to attack on absurd grounds because ‘good faith’ is difficult to prove.

Repercussions for Employer and Employee

The result is that the employee will have to take a settlement of two years salary as compensation when offered it by the employer, who otherwise escapes any repercussions for having fired the employee for reporting corruption. The employee is left without a job.

Need for Change for Effective Protection of Whistleblowers

That is why, unless there are fundamental changes to the system, it borders on reckless for any employee with dependents to be a whistleblower. The kinds of changes which will present the employee with meaningful protection of whistleblowers include deeming any application for protection in terms of the Protected Disclosures Act to be urgent as far as court proceedings are concerned.

The requirement of having to go via the CCMA for conciliation needs to be reassessed unless it is to take on a more meaningful roll. Currently it is only effective as a ‘cooling off’ period before Labour Court proceedings are instituted. The onus should also be on the employer to prove bad faith rather than the employee to prove good faith.

Once proceedings have been instituted in terms of the Protected Disclosures Act the employee should be protected until those proceedings are finalised (provided the employee prosecutes them expeditiously). This removes the incentive for the employer to drag them out as long as possible or to fire the employee in the meantime.

Without a complete relook at the Protected Disclosures Act, the divide between theory and practice will remain real and it will create a substantial disincentive for any employee to be a whistleblower.

Legalese and Labour Law

Labour Law and Legal Jargon

Trend toward legalese

Labour Law and legal jargon do not belong together in a perfect world. Clearly, we are not living in a perfect world. There is an unfortunate trend amongst many lawyers that they can make a simple matter complex by resorting to legal gymnastics to make the law fit their case.

This has spin off into how some documents are drafted. There are cases were a simple contract runs to several pages because of the extensive definitions clauses and the multitude of exclusions added at the end. There are some where the actual content of the agreement makes up a small percentage of the overall written document. But that is a discussion for another time.

‘Cost-effective and Expeditious’

The Labour Relations Act 66 of 1995 was drafted with the best intentions of simplifying labour law and creating what is often referred to a ‘cost-effective and expeditious’ way to resolve labour disputes. Whether it is cost-effective can be debated, but even the most ardent supporter of the new dispute resolution regime will have to concede the system is anything but expeditious. Brought in the normal course (ie with out jumping the queue via an urgent application), an opposed application in the Labour Court will take a year to be heard.

Obviously the losing party can then attempt to appeal that order, which will then stay its implementation (in terms of s 18 of the Superior Courts Act). Even if one of the parties expedites the matter (assuming the losing party will seek to drag out this process), judgement on the application for leave to appeal can take several months. Then of course there is the opportunity to petition the Labour Appeal Court. If they grant leave, the appeal can take another year, and (although there is a marked improvement by that Court) judgement can take a couple of months. Then there is the appeal to the Constitutional Court.

NUMSA v Dunlop

The recent Constitutional Court judgement in National Union of Metalworkers of South Africa obo Khanyile Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Ltd and Others [2019] ZACC 25 highlights this problem. The employees were dismissed on 26 September 2012, despite participating in a protected strike.

The matter went to arbitration, which ruled in the employees’ favour. The Labour Court then overturned that decision, and the Labour Appeal Court confirmed that judgement. On 28 June 2019 the Constitutional Court set aside the decisions of those two Courts and reinstated the decision of the arbitrator to reinstate the employees.

In other words, it took close to seven years for the employees to be reinstated, after they took part in a protected strike where they must have thought the law was on their side. Ultimately it was, but how did they eat? How did they afford rent? Seven years is a long time to remain unemployed while the lawyers and the Courts take their time.

‘Interpreting’ the Law

And what caused the problem in the first place? Quite simply, the very simple terms of the Labour Relations Act have been turned on their head by the ways lawyers have found to bring legalese into a supposedly simple process.

What are the grounds for dismissing an employee? Section 188 of the Labour Relations Act rather clearly sets out that there are only three grounds which an employer can fairly rely on for dismissing an employee: Operational requirements, capacity or conduct. Each have their own procedures and requirements, set out in the Act and its schedules. What could be more clear?

The problem comes with the ‘interpretation’. As a Judge recently said in the Labour Court, you can’t rely on the Act you have to see how the Courts have applied it. Of course, that strays dangerously close to the line of the separation of powers – the Courts are meant to apply legislation, not amend it by applying it in a different way.

Derivative Misconduct

This is what happened in the Dunlop matter, where the Court was faced with the question of ‘derivative misconduct’. Put very simply, before the Constitutional Court judgement, an employee, who has done nothing wrong, could be dismissed for not disclosing to their employer what someone else has done wrong. As with most ‘doctrines’, its original can be traced back to a tenuous source, being an obiter dictum in Labour Appeal Court judgement, which was then ‘interpreted’ by lawyers and academics to the point where it developed into a new ground for dismissal.

The Constitutional Court, thankfully, put an end to that line of reasoning. In paras [30] and [31] the Court clearly set out the grounds on which an employer can dismiss an employee:

“Misconduct, incapacity and operational requirements are the gateways to fair dismissal under the LRA. For an employer, each has its own difficulties of proof and process. Dismissal for operational reasons involves complex procedural processes, requiring consultation, objective selection criteria and payment of severance benefits. Dismissal for incapacity requires proof that performance standards deal with the alleged incapacity and that alternative ways, short of dismissal, were unsuccessfully pursued before dismissal can take place. Dismissal for misconduct in circumstances where the primary misconduct is committed by one or more of a group of employees and the exact perpetrators cannot be identified, is complicated by the accepted principle that the misconduct must be proved against each individual employee.”

It then went on to critically analyse the concept of derivative misconduct and came to the conclusion, which is so often the case, that the normal principles can be applied to those situations where it had been thought that a contrived concept was the only solution.

Reciprocal Duty of Good Faith

Essentially, the Court found that, save for those situations where the facts gave rise to a different conclusion, the duty of good faith was reciprocal. Employees don’t only owe to the employer, but by the employer owes it to the employee as well. In that case, where there was a protected strike, the employer could not expect employees who were not part of any violence (whether directly or indirectly) to expose their co-employees without catering for the obvious concerns (not least of which was safety) of the innocent employees. There may well be situations where, even though an employee was not part of violence relating to a strike, the circumstances of their employment created a duty on them to report those who were. It would be a breach of that duty which constituted the misconduct.

Which brings one to the question: If the normal principles could be applied so easily, why was it ever necessary to muddy the waters with an esoteric concept which the average employee (and employer) could never be expected to understand unless it was to take labour law out of the domain of the average person and into the exclusive playing ground of the lawyers.

Incompatibility

Incompatibility is another concept which has grown traction from a very tenuous beginning. It has transformed from being seen as a form of dismissal for operational requirements to a species of incapacity. From there it has changed to its own ground for dismissal. Section 188 of the Labour Relations Act, and the relevant codes of good practice, have not barred this development.

Hopefully this has been arrested by the recent Labour Appeal Court case of Baise v Mianzo Asset Management (Pty) Ltd [2019] ZALAC 42. Although in an obiter remark, the Court said:

“I agree that such a finding could not have been made on this body of evidence. The irretrievable breakdown in the working relationship between the two key actors in the business, called on occasion “incompatibility” – perhaps an extravagant and possibly technically incorrect use of that concept as usually invoked in Labour litigation – is a common cause fact, and in any event, is an objectively demonstrable fact.”

The Court then expanded upon this statement in a footnote where it said:

“Precisely how to conceptualise the idea of ‘incompatibility’ and how it relates to, or is distinct from, “incapacity” and has or has not any bearing on “operational requirements” as defined in the LRA, is a question which remains open for a resolution, but is unnecessary to resolve in this matter. The term seems to have used in this case interchangeably with “irretrievable breakdown”. This is a good illustration
why too much effort to label occurrences is unwise; a proper description of the happening or the condition is often quite enough.”

While obviously not giving any clear guidance as to what role ‘incompatibility’ plays in labour law, the last sentence illustrates the problem with which the Constitutional Court also grappled: “too much effort to label occurrences is unwise; a proper description of the happening or the condition is often quite enough”.

Rewritten in simple English, the Courts were saying: Apply the law as it stands, don’t complicate it by adding labels which then take on their own life.

Summary – Labour law and legal jargon

These two cases highlight the problem encountered by the layperson who comes into contact with the law. Apart from criminal law they are most likely to do so in the field of labour law. Lawyers (sometimes abetted by the Courts) love to use complex terminology to cater for the simplest of situations. There is no need to resort to ‘derivative misconduct’ when applying the normal principles to the employer/employee relationship will show if the employee is guilty of misconduct, in the sense of breaching the duty they owe to the employer or not.

Likewise, the resort to ‘incompatibility’ risks putting the cart before the horse. If the comments made in Baise are correct, then there is a danger that an employee faces the sanction before a finding on their culpability is made. In effect, the employer is saying that it is dismissing the employee without any resort to s 188 and then opposing reinstatement on the basis of ‘irretrievable breakdown’. Obviously that cannot be allowed, otherwise s 188 is toothless.

The solution to this problem of legal jargon being used to avoid the provisions of the Labour Relations Act is to insist on a return to basic principles, as the Constitutional Court did. Whatever the parties call their claim or defence, they should be required to bring them within the ambit of the Act. Then the attraction for esoteric doctrines and obscure labels will rapidly disappear.

The two cases above are among the 26 500 other judgements in our database. Subscribe to access them and use the powerful search functionality of our database.