Good day everyone, and welcome to another discussion in our “What if” series, where we bring you insights in the format of a What if question on the ever-evolving landscape of employment law.
I am Ross Simon from Maserumule Corporate Employment Law, and in today’s discussion we are covering an interesting question:
What if an employer dismisses a whistleblower for breaching IT rules? What are the legal considerations and implications.
In most companies, data security is a serious matter. More often than not, there are strict rules and policies against sharing work documents to your personal email, and contravening those rules could result in serious disciplinary action, including dismissal.
But what happens if you copy files to your personal email purely to protect evidence of company corruption?
Can an employer circumvent statutory whistleblower protocols by claiming that the reason for dismissal was not whistleblowing, but simply a violation of their internal internet policy?
To understand how the law operates, we look at two core concepts:
Whistleblowing—which under the Protected Disclosures Act is termed a
protected disclosure— and an
automatically unfair dismissal under Section 187 of the Labour Relations Act, which is the legal term for a completely prohibited, unlawful dismissal.
A recent Labour Court decision in the matter of
Abrahams v National Student Financial Aid Scheme (NSFAS). perfectly illustrates where the line is drawn.
The employee, Mr. Abrahams, was employed as a Facilities Manager. While managing an office relocation, he noticed shocking irregularities in a building tender.
Space requirements were falsely inflated, procurement rules were bypassed, and the company chose an expensive building that sat completely empty while taxpayers paid a staggering R2 million a month in rent.
Mr. Abrahams raised alarms internally, filed reports, and warned executives, but he was completely ignored.
Realizing internal routes were dead ends, he blew the whistle to the Special Investigating Unit—the SIU. To preserve the evidence and protect himself from being targeted, he emailed the procurement documents to his personal email and forwarded them to the investigators.
For months, management knew nothing. But after a Member of Parliament publicly exposed the corruption, the company panicked. They launched an immediate IT search— which was actually a
targeted hunt to uncover the source of the disclosure.
They found Mr. Abrahams' emails, charged him with violating the IT policy, and dismissed him.
At the Labour Court, the employer argued that this was a straightforward disciplinary matter. They claimed they were unaware he had approached the SIU, and maintained they were simply dismissing him for an ordinary internal IT policy contravention.
However, the Labour Court looked at the actual cause and effect of the circumstances and completely rejected the company's defence.
The Court highlighted three important legal considerations:
- First,
The Court ruled that forwarding the documents to a personal email was not an independent, standalone act of misconduct. Because Mr. Abrahams needed to secure the data to prevent it from being destroyed, the Court held that this action was legally inseparable from the whistleblowing itself. You cannot separate the disclosure from the method used to make it.
- Secondly,
The Court looked closely at the employer's true motive. It found that the IT investigation was not a routine policy audit, but a reactionary search triggered only after the corruption became public. Because the search parameters were designed specifically to unmask the whistleblower, the Court ruled that the IT policy was disingenuously used as a pretext—a legal smokescreen—to punish him.
- And finally,
• To find the true cause of the dismissal, the Court applied a strict two-step test of cause and effect.
-
First, it looked at factual causation using the "but-for" test. The Court asked: but for Mr. Abrahams exposing the corruption to the SIU, would the IT investigation and dismissal have ever occurred? The answer was a definitive no.
-
Second, the Court looked at legal causation to find the dominant cause. It determined that the whistleblowing was the main, proximate, and driving reason behind the entire termination. The whistleblowing is what triggered the whole chain reaction.
Because the real reason for the dismissal was retaliation, the Court declared the dismissal automatically unfair.
The court ordered the company to retrospectively reinstate Mr. Abrahams and cover his legal costs.
The takeaways are clear and vital for every workplace:
- Courts will look entirely past formal disciplinary paperwork or crafty IT charges to expose the true, underlying reason for a dismissal.
- If an employee technically breaches an internal rule strictly to secure or transmit proof of corruption to an official organ of state, the law protects that conduct.
- An employer cannot claim they didn't know someone was a whistleblower if their disciplinary actions are a direct reaction to the exposed information.
- Trying to disguise revenge as an ordinary disciplinary dismissal is a high-risk strategy that backfires heavily, exposing employers to retrospective reinstatements and punitive legal costs.
That brings us to the end of this week’s discussion. Thank you for joining us. I hope you have found our discussion informative.
If you have any questions or comments, we would love to hear from you— you can find us on social media, or email me at ross@masconsulting.co.za.
Until next time – good-bye
