As the South African legislative framework on the protection of whistleblowers continues to develop, employees primarily rely on the Protected Disclosures Act, 26 of 2000 (PDA) to provide them with protection against any form of reprisal if they disclose information relating to suspected or alleged criminal or other misconduct by their employers (both in the private and public sector).

It is now trite that an employee who makes a protected disclosure may not be subjected to any occupational detriment (disciplinary proceedings, dismissal, suspension, demotion, harassment and/ or intimidation) on account or partly on account of the protected disclosure.

In 2015, the Labour Relations Act of 1995 (LRA) introduced an amendment to the provisions dealing with pre-dismissal inquiries held by administrative bodies such as the Commission for Conciliation, Mediation and Arbitration (CCMA), accredited agencies and bargaining councils through section 188A (11).

Section 188A (11) reinforces the protection offered by the PDA to whistleblowers by providing that, if an employee alleges, in good faith, that holding a disciplinary inquiry contravenes the PDA, the employee or employer may require that such an inquiry be conducted by an arbitrator.

In Ramsammy v Wholesale & Retail Sector Education & Training Authority (2009) 30 ILJ 1927 at paragraph [53] the Labour Court explained the meaning of good faith in the context of disclosures to mean that the employee making the disclosure must reasonably believe that the information disclosed, and the allegations therein, are substantially true, and not made for the employee’s personal gain. The phrase ‘good faith’, when used as a noun, means honesty and sincerity of intention.

The jurisdictional requirements of section 188A (11) 

In the recent case of Mamodupi Mohlala-Mulaudzi v Property Practitioners Regulatory Authority (Case no: J68/23) (Mohlala-Mulaudzi), the Labour Court highlighted, with disapproval, the prevalent trend of employees invoking the provision of section 188A (11) of the LRA without providing any evidence of a protected disclosure, and with the intention of delaying pending disciplinary proceedings against them. The Labour Court evaluated the import, purpose, and correct interpretation of section 188A (11) to curb the apparent abuse of the section.

In summary, the applicant (Mohlala) was employed by the Property Practitioners Regulatory Authority (PPRA) as the chief executive officer. On 15 July 2022, PPRA presented Mohlala with several allegations of misconduct. Mohlala invoked section 188A (11) of the LRA by requesting that an inquiry be conducted by an arbitrator into the allegations of misconduct levelled against her.

She alleged that the pending disciplinary inquiry contravened the PDA as it was tantamount to subjecting her to an occupational detriment. The Labour Court noted that Mohlala failed to provide details of the protected disclosure and/or to whom the disclosure was made. Accordingly, no prima facie evidence was presented as proof of the alleged protected disclosure.

Following Mohlala’s request to the CCMA to invoke section 188A (11) of the LRA, the chairperson of the disciplinary inquiry issued a ruling effectively terminating the inquiry until a ruling was issued by the CCMA on whether it has jurisdiction to hear the section 188A (11) inquiry.

The chairperson held that only if the CCMA determined that it does not have jurisdiction, would the internal disciplinary inquiry proceed. The CCMA proceeded to set down the inquiry for hearing without ruling on the issue of jurisdiction. Between August 2022 and December 2022, the CCMA inquiry was postponed multiple times, at Mohlala’s behest. Ultimately, the PPRA concluded that the section 188A (11) dispute was a delaying tactic used by Mohlala to stall the internal disciplinary inquiry. The PPRA eventually decided to summarily dismiss Mohlala for the alleged misconduct and her refusal to participate in the disciplinary inquiry.

In response to the summary dismissal, Mohlala launched an urgent Labour Court application seeking to interdict her summary dismissal, but the urgent application was subsequently withdrawn. Mohlala referred an unfair dismissal dispute to the CCMA, which remained unresolved at conciliation, following which she referred the matter to the Labour Court on an urgent basis.

In evaluating the import and purpose of section 188A (11) of the LRA, the Labour Court held that a mere allegation by an employee to the effect that disciplinary proceedings against them contravene the PDA is not sufficient to invoke the provisions of section 188A (11).

The Court noted that when drafting the section, the legislature was alive to the fact that employees may make unfounded allegations of contraventions of the PDA to gain the right to an inquiry by an arbitrator, accordingly, employers and administrative bodies must first establish that the necessary jurisdictional requirements for an employee to invoke section 188A (11) exist before entertaining any request for an inquiry. The jurisdictional requirements include the following:

• The employee must make a protected disclosure. Any request in terms of section 188A (11) of the LRA must be accompanied by proof of the protected disclosure made, which must predate the charge sheet issued to the employee and the commencement of the relevant disciplinary action.
• The employer must subject the employee who made the disclosure to an occupational detriment.
• The employee must establish a causal connection between his/her protected disclosure and the occupational detriment.

In Mohlala-Mulaudzi, there was no evidence of the above-mentioned jurisdictional facts before the CCMA or the Labour Court. Accordingly, the Labour Court held, amongst others, that the CCMA did not have jurisdiction and Mohlala was not entitled to a section 188A (11) inquiry.

The Impact of section 188A (11) on disciplinary inquiries 

The section 188A (11) jurisdictional requirements make it clear that a disciplinary inquiry cannot be automatically terminated by mere allegations by an employee. A disciplinary inquiry can only be lawfully terminated if the relevant administrative body accedes to the request after establishing that the jurisdictional requirements of section 188A (11) exist. If the employee’s request falls short of these requirements, the relevant administrative body must refuse to entertain the request that an inquiry be conducted in terms of the section as this will prejudice the employer in that the employer’s right to discipline the employee will be lost and/or unnecessarily delayed.

Mohlala-Mulaudzi demonstrates that there is a delicate balance to be struck between protecting whistleblowers in the workplace and the employers’ right to fair labour practices.

Written by Nombulelo Myeni and Keshni Naicker from Bowmans Attorneys