In South Africa, whistleblower protection is based in the Protected Disclosures Act 26 of 2000 (PDA). Allied to the world of work, the PDA provides that in the workplace employees may, without fear of reprisal, disclose information relating to suspected or alleged criminal or other irregular conduct by their employers (both in the private and public sector). It is the Labour Relations Act 66 of 1995 (LRA) which then renders a dismissal automatically unfair if it constitutes a contravention of the PDA by an employer, and which attempts to protect employees from being victimised through disciplinary and other processes where the whistle has been blown.

Before the CCMA

Section 188A(11) of the LRA was introduced into law in 2015 as an amendment to the provisions dealing with pre-dismissal arbitrations by the Commission for Conciliation, Mediation and Arbitration (CCMA). Section 188A(11) provides that if an employee alleges in good faith that the holding of a disciplinary inquiry contravenes the PDA, the employee or the employer may require that such enquiry be conducted by a CCMA arbitrator instead. The CCMA arbitrator is to enquire into the allegations of misconduct or incapacity of the employee. So, instead of having an internal disciplinary inquiry, there would be an inquiry conducted by a CCMA arbitrator. Historically, parties in cases involving claims of protected disclosure would get drawn into urgent applications in the Labour Court. Section 188A(11) was aimed at reducing such litigation. 

However, closing down one avenue of complication has created in practice another, because section 188A(11) is so easily open to abuse by employees.

An employee, in an attempt to avoid disciplinary action or to delay an ongoing internal disciplinary enquiry, may allege that they have made a protected disclosure and therefore, relying on section 188A(11), require that the disciplinary inquiry be terminated and referred to the CCMA for a pre-dismissal arbitration. There are conflicting Labour Court judgments on the correct interpretation and effect of section 188A(11), two of which are considered below.

Labour Court judgments

In Nxele v National Commissioner: Department of Correctional Services and Others [2018] 39 ILJ 1799 (LC), a senior employee of the department disclosed to the Public Service Commission and the Public Protector that the respondent’s national commissioner was involved in irregular and unlawful appointments and corrupt activities. After the alleged protected disclosure, the employee was charged with several counts of fraud relating to travel claims and the loss of a firearm. When the disciplinary enquiry commenced, the employee requested that the enquiry be conducted by an arbitrator under section 188A(11). The chairperson of the disciplinary enquiry ruled that, in the absence of the consent of the employer, the disciplinary hearing must proceed. The employee was found guilty in respect of the travel claims. Before a sanction could be imposed, the employee launched an urgent application to interdict the continuation of the disciplinary hearing. The Labour Court held that when an employee alleges that they have made a protected disclosure and makes a request for a pre-dismissal arbitration, the employer is obliged to refer the matter to the CCMA for a pre-dismissal hearing and terminate the internal disciplinary hearing.

In contrast, the Labour Court in Tsibani v Estate Agency Affairs Board and Others [2021] JOL 51625 (LC) found differently. In Tsibani, the employee, relying on section 188A(11) sought to interdict her disciplinary inquiry. She contended that she had made a protected disclosure, consisting of allegations of impropriety against the CFO and other officials of the Estate Agency Affairs Board. The Labour Court held that section 188A(11) does not envisage the holding of two parallel hearings, it provides for an inquiry into allegations relating to an employee’s conduct or capacity and for such an inquiry to be conducted by an arbitrator. The arbitrator will make findings on the conduct of the employee and must, in light of the evidence presented and considering the criteria of fairness, rule as to what action, if any, may be taken against the employee. Further, it found that the provisions of section 188A(11) are not intended or designed to compel an employer (or an employee) to be subjected to two simultaneous and parallel disciplinary processes. It was further held that section 188A(11) is not designed or intended to determine whether the facts constitute a protected disclosure as contemplated by the PDA or not, and if not, for an internal disciplinary hearing to proceed. The section merely provides for an inquiry into allegations pertaining to the conduct or capacity of an employee by the CCMA.

In our view, the judgment in Tsibani is more sensible and would likely be followed in time.

Employers should be cognisant of employees who, in an attempt to halt or delay internal disciplinary enquiries, rely on section 188A(11). Even in instances where an employee has indeed made a protected disclosure, that employee is not immune from facing disciplinary action, where some other conduct of the employee (that is not related to the protected disclosure) constitutes misconduct in the view of the employer. 

So, unlike other countries which provide rewards for whistleblowers, in South Africa workplace whistleblowers can still face discipline where they have misconducted themselves or performed poorly. Employers, on the other hand, are easily hamstrung by charlatans who abuse section 188A(11) to delay disciplinary processes and at the same time remain on the payroll.  An unnecessary frustration created by section 188A(11).  

At the end of the day, our laws on whistleblower protection need to be beefed up and employer protection against charlatans also need to be recognised to stem the rising tide of abuse. We are a long way off from the protectionist position provided in many other countries like the US to whistleblowers.