INTRODUCTION
Whistleblowing simply put is the act of exposing illegal, unethical, or harmful activities within an organization. In South Africa, this critical role is safeguarded by the Protected Disclosures Act 26 of 2000 (PDA), which aims to encourage individuals to come forward with information that can help combat corruption and misconduct.
Under the PDA, a whistleblowing report—referred to as a “protected disclosure”— offers legal protection to whistleblowers provided certain criteria are met. For a disclosure to properly qualify as protected, it must address specific irregularities outlined in the PDA and be directed to an appropriate recipient and in an appropriate manner.
Additionally, the disclosure must follow the correct procedural steps, including being made in good faith, not be for personal gain, and be reasonably believed by the whistleblower to be true. This background emphasizes the importance of both the substance and procedure of whistleblowing, ensuring that the whistleblower is shielded from retaliation while promoting integrity within organizations.
On 28 November 2024, the Labour Court of South Africa delivered a significant judgment in Phosa v Ekurhuleni Metropolitan Municipality , a case highlighting whistleblower protections and procedural fairness.
SUMMARY OF THE FACTS
Mandisa Phosa, herein after referred to as the Employee, was employed as a Divisional Head: Waste Management Services by the Ekurhuleni Metropolitan Municipality.
The Employee had in good faith made a protected disclosure to the City Manager in writing. She disclosed that her senior violated the laws and made various allegations of contravention of the supply chain process in respect of two projects.
Subsequently the senior issued the Employee a final written warning for allegedly not attending a meeting. The Employee lodged a grievance against her senior complaining of harassment, abuse of power and unfair and biased treatment. Nothing came of the Employee’s grievance. There was no investigation into the disclosure made. The Employee continued to endure unfair treatment to the detriment of her work, health and mental capacity.
The Employee consulted a social worker and was later booked off for 2 weeks. The Employee eventually completed an incapacity referral form and consented to the Employer obtaining her medical record from the medical practitioners in its investigation of her medical condition. The Employee had submitted all necessary documentation in this regard. The Employee received no response from the Employer which prompted her to reach out to the Employer.
The Employer responded that she was summarily dismissed on 11 June 2021 on grounds of alleged incapacity due to stress-related ill health. Subsequently, the Employee declared and referred a dispute to the South African Local Bargaining Council (SALGBC) challenging her dismissal. The dispute was later referred to the Labour Court for adjudication.
LABOUR COURT PROCEEDINGS
The Employee contended that her dismissal was automatically unfair under section 187(1)(h) of the Labour Relations Act (LRA), claiming she was dismissed in retaliation for making a protected disclosure under the Protected Disclosures Act 26 of 2000 (PDA). The Employee argued that her whistleblowing about her senior’s procurement irregularities within the municipality led to harassment, exclusion, and ultimately, her termination.
The Employer defended the Employee’s contention by asserting that the dismissal was due to the Employee’s inability to perform her duties because of ill health.
Ultimately the court had to decide whether but for the protected disclosure, in whole or in part, the Employee would not have been dismissed. To do this the court had to decide 2 key issues:
- Did the Employee’s actions qualify as a protected disclosure under the PDA?
The court found that the Employee made a protected disclosure to her Employer. There was no evidence to suggest that the disclosure was made in bad faith. The allegations that form part of the disclosure were, based on the evidence presented, substantially true. They related to the breach of procurement processes, where on the face of it, her senior and members of the BEC disregarded the tender specifications or rather, deliberately bent over backwards to discard the tender specifications in order to accommodate and award the tender to certain service providers, with no regard whatsoever to the service delivery and the empowerment of community members who were supposed to benefit from the projects.
- Was there a causal link between the disclosure and the Employee’s dismissal?
The court was required to determine factual causation by asking whether the dismissal would have occurred if the employee had not made the protected disclosure. If the answer is yes, then the dismissal is not automatically unfair. If the answer is no that does immediately render the dismissal automatically unfair; the next issue is one of legal causation, namely whether such disclosure was the main, dominant, proximate or most likely cause of the dismissal. Thus, the court must enquire into the main or dominant, proximate, or most likely reason for the dismissal. The employee bears the onus to establish at least a ‘credible possibility’ that the dismissal was for a proscribed reason. If the employee fails to discharge that onus, the Labour Court at its discretion may proceed to determine the substantive and procedural fairness of the dismissal.
The court found that shortly after the disclosure and grievance the Employee was threatened with insubordination and unjustifiably issued with a final written warning for not attending a meeting. Further the Employee was asked to reconsider pursing the protected disclosure as it may damage her Employer’s reputation. When the Employee fell ill, with medical certificates and a report describing her illness, as mental-related, all her seniors supported her dismissal which was approved by the City Manager, who was the recipient of the protected disclosure.
The Court held that the reasons for the dismissal as articulated by the Employer are connived and absurd. The Employer in essence dismissed the Employee for incapacity and poor performance. It then concluded that because of the nature of the incapacity and the Employee’s poor “track record”, she lost her right to a fair procedure. With no regard to the Employee’s mental well-being, they prepared a monotonous letter of dismissal and trampled on the fundamental rights of the Employee to be heard before the dismissal – the right contained in her contract of employment.
The court held that there was no reason to dismiss the Employee for alleged “incapacity” and to dispense with the binding procedures set out in the contract. The only reasonable inference, having considered the senior’s desire to discipline the Employee almost immediately after the protected disclosure and grievance and failure to investigate the serious allegations raised in the protected disclosure, the failure to attempt to resolve the grievance and the manner in which the dismissal was carried out, is that the Employee was dismissed for making the protected disclosure and raising serious allegations of procurement irregularities against her senior.
Accordingly, the court found that the Employee’s dismissal to be automatically unfair. The Employee was awarded maximum compensation of 24 months remuneration.
KEY TAKEAWAYS:
This judgment underscores the importance of the PDA in safeguarding employees who expose misconduct. Employers must not retaliate against whistleblowers, as such actions invite severe judicial scrutiny. Employers must strictly adhere to procedural and substantive fairness when terminating employees, particularly on grounds like incapacity. Failure to do so can render dismissals automatically unfair in the context of a protected disclosure. Employers are accordingly warned about the consequences of retaliatory dismissals. Courts will examine the underlying motives for dismissal, and where retaliation is evident, the penalties can be significant.
Download the article here
© Maserumule Corporate Employment Law – April 2025
