9 June 2014 by Employment Matters

Beaurain V Martin N.O and Others: The unreasonable whistle-blower

In Beaurain v Martin N.O. and Others (C16/2012) [2014] ZALCCT 16 (16 April 2014), the Labour Court (LC) applied the criteria in the Protected Disclosures Act, No. 26 of 2000 (PDA) to a self-described whistle-blower and found him wanting.

Mr Beaurain, an electrician at Groote Schuur Hospital, was dismissed for gross insubordination. Beaurain had taken it upon himself to publicise on Facebook the details of what he erroneously believed were health hazards in the hospital and had disobeyed management's instructions to desist.

Beaurain challenged the fairness of his dismissal on the basis that his actions constituted disclosures in terms of the PDA. The Court disagreed, finding that Beaurain's conduct fell outside the PDA's definition of 'disclosure' and that, in any event, Beaurain had failed to follow the statutory procedure.

The PDA defines 'disclosure' as "any disclosure of information regarding any conduct of an employer, or an employee of that employer, made by any employee who has reason to believe that the information concerned shows or tends to show one or more of the following…". In applying the definition, the court had regard to the reasonableness of the publication and the notoriety of the information publicised.

Unreasonableness

First, the Court found that Beaurain's publication of the information, while bona fide, did not meet the reasonableness requirement. Beaurain had acted in the erroneous belief that the air in the hospital had been contaminated by the unsanitary condition of certain hospital toilets, thus posing a health hazard to staff and patients. After Beaurain first publicized the information, the hospital's management explained to him that there was no medical basis for his allegations and instructed him to desist. The Court found that Beaurain's persistence in the face of the explanation rendered his actions unreasonable.

Notoriety

Second, the information was notorious because the hospital's employees were all aware of the unsanitary condition of the toilets in question. The court held that notorious information couldn’t form the subject of a protected disclosure.

Failure to follow statutory procedure

S9(2)(c) of the PDA requires that the employee making the disclosure must previously have made the same disclosure and that no action had been taken to address the previous disclosure.

Unbeknownst to Beaurain, the hospital had already taken action before he persisted in publicising the information. S2(1)(c) states that one of the objects of the PDA is "to provide for procedures in terms of which an employee can, in a responsible manner, disclose information regarding improprieties by his or her employer". The Court placed special emphasis on the element of responsibility and found that Beaurain had acted irresponsibly by publicizing the information on Facebook, remarking that publication on the internet is inherently unfair because the internet is not subject to any editorial policy.

Employers should take comfort in the court's view that the internet is not a suitable forum for disclosures of this nature. Employers should also bear in mind the value of addressing an employee's unreasonable allegations at the first available opportunity and thereby depriving an aspiring whistle-blower of the vaunted 'reasonableness' element.

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