16 April 2018 Employment Alert

Protected disclosures by employees do not need to be factually accurate

In terms of the Protected Disclosures Act, No 26 of 2000 (PDA), if an employee makes a disclosure to his or her employer, the disclosure does not need to be factually accurate in order for the employee to later claim protection with reference to the disclosure.

The Labour Appeal Court (LAC) in the matter of Lou-Anndree v Afrox Oxygen Limited, confirmed the application of s6 of the PDA in respect of the requirement of factually accurate information disclosed by an employee in terms of the PDA.

In terms of s6 of the PDA, any disclosure made to an employer by the employee in good faith and substantially in accordance with any procedure authorised by the employer is a protected disclosure. Section 6 only requires proof of a credible possibility of the issue outlined in the disclosure and any disclosure made in good faith must ultimately be protected.

The employee in the Afrox matter became aware of an alleged discrepancy in the salary grading of one of her subordinates. Despite raising concerns with her direct superiors, the employer failed to address the employee’s concerns. Some two months later, and in an ambush meeting, the employer offered the employee (Lou–Anndree) a mutual separation package which the employee rejected. She was subsequently summarily dismissed on the basis of alleged incompatibility with her subordinates.

Dissatisfied with her dismissal, the employee referred the dispute to the National Bargaining Council for the Chemical Industry, alleging an automatically unfair dismissal, arising from her protected disclosure. The Labour Court subsequently adjudicated the matter.

The employee alleged that her dismissal was automatically unfair, as she had been subjected to an occupational detriment arising from making a protected disclosure in terms of the PDA. In terms of the PDA, an occupational detriment is specifically described as harassment, dismissal, transfer against the will of the employee, non-promotion or a denial of appointment. In terms of s3, an employee may not be subjected to any occupational detriment by his or her employer on account of having made a protected disclosure.

In its judgment, the Labour Court held that the employee’s alleged protected disclosure was based on factually inaccurate information and on that basis, her disclosure could not be considered a protected disclosure for purposes of the PDA.

The employee appealed the judgment and the LAC held that the employee need only comply with s6 of the PDA. In respect of a disclosure by an employee to his/her employer, s6 only requires proof of a credible possibility that the information disclosed is accurate and any disclosure made in good faith must be protected. The employee made a disclosure to her employer and as such, the LAC held that only s6 of the PDA applies. The Labour Court, therefore, erred in applying s9 of the PDA. Section 9 of the PDA relates to a general disclosure made by an employee to any person and the employee reasonably believes that the information disclosed is substantially true. The Labour Court had elevated the requirement of “reasonable belief” of a disclosure to one of accuracy of the facts on which the belief was based and the LAC found that this was incorrect.

Reasonable belief need not be equated to personal knowledge of the information disclosed as that would frustrate the operation of the PDA. A reasonable belief may be deemed reasonable, even where the information turns out to be inaccurate. Disclosure of a hearsay opinion would even be reasonable; depending on its reliability. The employee reasonably believed that there were inaccuracies in the salary grading process. The employee was therefore not acting mala fide when she believed that the information she disclosed was substantively true.

The LAC has clarified that there is no requirement to factually prove the basis for such reasonableness as highlighted in this case. All that is required is reasonable belief by the employee of that disclosure. Employers should, therefore, steer clear of disregarding factually inaccurate disclosures and subsequently disciplining employees which may be regarded as subjecting the employee to an occupational detriment.

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