21 June 2010

Don't shoot the messenger

"I didn't attend the funeral, but I sent a nice letter saying I approved of it." - Mark Twain

Mr. Weyers was employed by the City of Tshwane Metropolitan Municipality as a Managing Engineer: Power System Control, whose key functions included safe electrical operations on the network. Mr. Weyers became frustrated by employment equity requirements imposed on him by HR, which he thought failed to take account of the unique challenges his function faced, such as higher technical qualifications.

The situation reached an impasse when, contrary to Weyers' professional and legal obligations, he was requested to employ staff who were, in his opinion, dangerously under qualified to perform the hazardous tasks at hand. After several attempts at negotiating a reasonable settlement with HR, Weyers addressed correspondence to, among others, the Department of Labour and the Engineering Council, advising them of the dangers of the proposed selection method and his attempts to resolve the problem.

Weyers was charged with 'copying a letter to the...Department of Labour and Engineering Council of South Africa without authorisation'. Weyers' subsequent dismissal raised two issues that the Supreme Court of Appeal (SCA) dealt with in City of Tshwane Metropolitan Municipality v Engineering Council of South Africa and Another [2009] ZASCA 151.

The first issue was whether or not the High Court (the Court) has jurisdiction to entertain matters pertaining to the Protected Disclosures Act, 26 of 2000 (the PDA). Section 4(1) of the PDA provides that an employee who has suffered an occupational detriment may approach 'any court having jurisdiction'. Section 4(2) of the PDA deems any dismissal in breach of the PDA as automatically unfair and any occupational detriment suffered to be an unfair labour practice. Section 4(2) also provides that such disputes 'must follow the procedure set out in chapter VIII of that Act'.

The Appellants argued that the High Court did not have jurisdiction over the matter as section 4(2) of the PDA creates an exclusive labour related issue, which should exclusively be determined by the Labour Court. They further argued that reference to "any court" in section 4(1) was intended to include only those persons who were excluded from the ambit of the Labour Relations Act, 66 of 1996 (LRA).

The SCA held that this is incorrect, as section 4 was not intended to deprive the Court of its inherent jurisdiction. Section 4(2) was intended to locate the PDA within the framework of the LRA and the remedies it provides and thus harmonise the statutes, but not to exclude other remedies.

The SCA also made inroads into what constitutes "information" in the PDA. The Court held that opinions can constitute information for the purposes of the PDA and that generally a narrow interpretation of the nature of "information" would defeat the object of the PDA, which is to encourage a culture of openness that allows employees to disclose opinions that they honestly hold.

The Court, in its reasoning did not enquire as to whether or not the opinions held were reasonable. The opinions must only be 'honestly held'. This failure could prove hazardous for employers who discipline employees for unreasonable or even slanderous statements which were honestly held. Mr. Weyers' case reminds us that employers must be cautious when dealing with employees who have made disclosures and must objectively analyse whether or not the information provided fulfils the requirements of a protected disclosure.

Johan Botes, Director, Employment Law
Mabasa Sibanda, Candidate Attorney, Employment Law

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