John v Afrox Oxygen Limited (JA90/15) [2018] ZALAC 4 (29 January 2018)

Principle:

To qualify as a protected disclosure, an employee needs only have reason to believe that the information concerned shows or tends to show that the impropriety has been or is being or may be committed in the future. The employee does not have to show that the information is factually accurate.

Facts:

An employee was summarily dismissed because of 'incompatibility with colleagues'. Unhappy with her dismissal, she referred the dispute to conciliation at the bargaining council, alleging an automatically unfair dismissal because the real reason for her dismissal was that she had made a protected disclosure in terms of the Protected Disclosures Act (PDA).

The matter was then referred to the Labour Court where her case was that the re-grading of positions, without consultation, negatively impacted on the future salary increase of the affected employees and also distorted the accuracy of the employment equity report submitted to the Department of Labour. She showed that her belief in the inaccurate grading was reasonable, but did not show that it was factually accurate. The court took the view that a belief must be based on facts in order to enjoy the protection of the PDA.

On appeal to the Labour Appeal Court, the court confirmed that the enquiry is not about the reasonableness of the information, but about the reasonableness of the belief. This is so because the requirement of 'reasonable belief' does not entail demonstrating the correctness of the information, because a belief can still be reasonable even if the information turns out to be inaccurate. Because the employee had demonstrated a reasonable belief, herdismissal was held to constitute an automatically unfair dismissal and the employer was ordered to compensate the applicant in a sum equal to 18 months' salary.

Extract from the judgment:

Waglay JP

[15]   The appellant's contention may be summed-up as follows: that the court a quo erred in finding that it was required of her to comply with section 9 of the PDA. She submits that as the disclosure was made to her employer, she needs only to comply with section 6 of the PDA in that the requirement of a reasonable belief is only present in section 9. The appellant then submits that in light of section 6, she was only required to prove a credible possibility that:

  1. She had reason to believe that the information she disclosed tended to show that a criminal offence had been committed, is being committed or may be committed in the future, or that the respondent failed, is failing or may in the future fail to comply with a legal obligation;

  2. She made the disclosure in good faith; and

  3. She followed a procedure prescribed or authorised by her employer. Consequently, she submitted that she had discharged her evidentiary burden and that even if section 9 applies, she did have a reasonable belief. The appellant also seeks notice pay due to her as a result of her dismissal without notice.

[16]   The respondent, as was the case in the court a quo, pursued in this Court the same line of argument, namely, that the appellant was dismissed for incompatibility.

[17]   Dismissal for occupational detriment is governed by section 187(1)(h) of the LRA. It renders automatically unfair a dismissal as a result of an employee having made a protected disclosure. Section 4(2)(a) of the PDA also provides that any dismissal in breach of section 3 is deemed to be an automatically unfair dismissal as contemplated in section 187 of the LRA.

[18]   In section 1 of the PDA, "disclosure is defined 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 that -

  1. that a criminal offence has been committed, is being committed or is likely to be committed;
  2. that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject;
  3. that a miscarriage of justice has occurred, is occurring or is likely to occur;
  4. that the health or safety of an individual has been, is being or is likely to be endangered;
  5. that the environment has been, is being or is likely to be damaged;
  6. unfair discrimination as contemplated in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000); or
  7. that any matter referred to in paragraphs (a) to (f) has been, is being or is likely to be deliberately concealed.'

[19]   Further disclosures made by an employee to its own employer is dealt with in section 6(1) of the PDA which provides:

  1. 'Any disclosure made in good faith-

    1. and substantially in accordance with any procedure prescribed, or authorised by the employee's employer for reporting or otherwise remedying the impropriety concerned; or
    2. to the employer of the employee, where there is no procedure as contemplated in paragraph (a),is a protected disclosure.'

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[21]   In the circumstances and in terms of the definition, an employee needs only have "reason to believe" that the information concerned "shows" or "tends to show" that the listed impropriety "has been" or "is being" or "may be committed in the future".

[22]   In this matter, the appellant made the disclosure only to her employer and, as such, in my view, it is only section 6 of the PDA that is relevant.....

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[25]   In the circumstances, for the disclosures made by the appellant to qualify as protected disclosure as stated earlier, the appellant had to have reason to believe that the information she disclosed, at the very least, tended to show that an impropriety has, is being, or may be committed, or that the respondent has, is failing, or may in the future fail to comply with its legal obligation. Furthermore, that the appellant acted in good faith when she made the disclosures and in doing so followed procedures either prescribed or authorised by the employer.

[26]   The court a quo, while accepting that the belief needs not be correct, took a contrary view that the belief must be based on facts in order to enjoy the protection of the PDA. Based on that the court a quo held that the appellant had "on the facts she presented, failed to show the existence of a reasonable belief that the respondent had engaged in conduct that falls within the definition of protected disclosure as envisaged in the PDA". This approach is misconceived. In SA Municipal Workers Union National Fund v Arbuthnot, the court held that "the enquiry is not about the reasonableness of the information, but about the reasonableness of the belief". This is so because the "requirement of 'reasonable belief' does not entail demonstrating the correctness of the information, because a belief can still be reasonable even if the information turns out to be inaccurate."

[27]   In Radebe, this Court held that the requirement of a reasonable belief:

'...cannot be equated to personal knowledge of the information disclosed. That would set so high a standard as to frustrate the operation of the PDA. Disclosure of hearsay opinion would, depending on the reliability, be reasonable. A mistaken belief or one that is factually in accurate can nevertheless be reasonable. A mistaken belief or one that is factually in accurate can nevertheless be reasonable unless the information is so inaccurate that no one can have interest in its disclosure.'

[28]   In holding that the appellant should prove the correctness of the facts for existence of the belief in order to enjoy protection, the court a quo elevated the requirement of the reasonableness of the belief to one of the accuracy of the facts upon which the belief was based. This sets a higher standard than what is required by the PDA, and such a requirement would frustrate the operation of the PDA.

[29]   All that is required is for the appellant to reasonably believe that the conduct is unlawful. In this matter, the appellant's contention is that the discrepancies she noticed in the re-grading process would be detrimental to any future salary increase of the affected re-graded employees and that it would also affect the employer's employment equity reports, which it is legally obliged to make to the Department of Labour. The appellant reasonably believed that there were inaccuracies in the re-grading system. This was conceded by the respondent's witness, Ms Makwela, under cross-examination. The explanation she gave for the inaccuracy is that the system takes longer to implement the change. In view of the concession that the system was not up to date with the changes, it was not erroneous for the appellant to believe that the information she disclosed was substantively true. Having found that the appellant reasonably believed that the disclosure was substantively true, namely, that the employees were re-graded to a lower grade without their knowledge or consent, the next leg of the inquiry is whether it was reasonable for the appellant to have made the disclosure.

[30]   The court a quo did not deal with the question of whether it was reasonable to have made the disclosure, being content with its finding on the failure of the appellant to prove the existence of a reasonable belief. Consequently, the parties did not deal with the question, save for the appellant's submission that the respondent had failed to comply with its legal obligation to consult the employees who were being prejudiced by the unilateral re-grading. In any event, the assessment of the reasonableness of the disclosure is done in light of the two reasons advanced by the appellant in justifying her disclosure viz (i) that the re-grading without consultation would affect future salary increases of the employees and (ii) the incorrect re-grading would affect the report submitted to the Department of Labour.

[31]   The appellant's case is that the re-grading was not in compliance with the employer's legal obligation. In the case of Armstrong, the appellant observed her notch has changed from 2 H to 2M and alerted the employer. She first e-mailed her immediate supervisor, Wagner, who stated that because it was a lateral transfer, the salary should remain unchanged. She then e-mailed Graham and stated that Armstrong was graded 2H and was not aware of any change. A further e-mail from Wagner explained that the grading process was done prior to the appellant joining the respondent.

[32]   What is surprising in all of these explanations is that the change occurred in early January 2013. By that time the appellant had been with the respondent for some six months. The explanation that the grading process was done before the appellant joined the respondent is irreconcilable with the explanation of Ms Makwela under cross-examination. She testified that the change to the system does not happen immediately, in that there is always a delay in the implementation date. It is improbable that the respondent would take more than six months to effect a change in the system. Moreover, I find it strange that the appellant was not given that same explanation when she queried the discrepancies.

[33]   Furthermore, Ms Makwela's testimony was that the positions were downgraded because the reporting line changed from Graham to the appellant. This, if anything, indicates that there was non-compliance in the re-grading process. The further question that arises is why did the explanations only surfaced during the court proceedings especially, as put by the appellant, when she had discussed the matter with no less than five senior managers.

[34]   Following on SFW Group Limited and Another v Martel EtCie and Others, I am of the view that the probabilities favour the appellant. The initial explanations provided by the respondent about the discrepancies in the re-grading process, differ from the explanation given in the court proceedings. The respondent's evidence also demonstrates that the re-grading was done without following due process. The explanations provided by the respondent are, in my view, all an afterthought. Since there was no compliance with due process, it, ultimately, follows that the appellant rightly believed that the re-grading process would prejudicially affect employees' future salary increase. This is also borne out by Wagner's e-mail to the appellant, that no salary increase was foreseeable for Armstrong in the near future because of the re-grading. The re-grading had placed Armstrong on a scale above the norm for her new grade.

[35]   It is curious that the court a quo held that there was no duty on the part of the respondent to consult because the appellant failed to refer to specific provisions of the LRA or the BCEA enjoining consultation.

[36]   It is not disputed that the employees that were re-graded were not consulted. The respondent's justification for the failure to do so is that the grading did not affect employees' salary and benefit, thus there was no need to consult with them. By failing to consult the affected employees and by unilaterally re-grading the employees, the respondent failed to follow the very basic prescript of our labour laws which is to consult an employee or his/her representative when the employees' rights are to be affected. The appellant was rightly concerned with the legal flaw in the re-grading process and properly raised it with her employer.

[37]   In relation to the employment equity reporting: the court a quo held that the appellant failed to show that her belief was reasonable. The court a quo upheld the version of the respondent as unchallenged, namely, that the report is made online to the Department of Labour, audited and published in its annual report. This was never put to the appellant in cross-examination for comment. That being the case, there was no basis for the court a quo to accept the respondent's version or regard it as unchallenged. The court a quo then held that the appellant had again failed to provide a factual basis for her belief that because the salaries of the employees would remain unchanged after the re-grading, that would not affect the report on the wage differentials to be made to the Department of Labour. As stated earlier, the court a quo's finding is misconceived. The appellant should simply have a reasonable belief that the discrepancies in the re-grading process would influence the employment equity report. To require the appellant to factually prove the basis for the reasonableness of her belief is not a requirement. In fact, the court in SA Municipal Workers Union National Fund v Arbuthnot, held that a belief can still be reasonable even if the information turns out to be inaccurate.

[38]   In this case, it is found that there were irregularities, but even if the reasons for her belief appear unfounded, that does not render the disclosure unreasonable, because the information disclosed was substantively true. I agree with the court a quo that section 27 of the Employment Equity Act 55 of 1998 only requires a designated employer to put measures in place where there is a disproportionate income in order to progressively reduce such differentials, but failed to recognize that a skewed report could affect how the information is interpreted. As submitted by the appellant, all what was required of the appellant was a reasonable beliefthat the information she disclosed tends to show that "a skewed report may be produced for purposes of the Employment Equity Act".

[39]   In light of the above, the appellant reasonably believed that the re-grading process was done in a manner that violated the legal obligation to which the respondent was bound and it was reasonable to have made the disclosure. There is no ulterior motive; the appellant acted in good faith and reasonably believed that the information was substantively true. It then follows that the respondent's contention that the appellant was dismissed for incompatibility is nothing short of fiction and the only probability is that the appellant's dismissal was in retaliation for her disclosure of the irregularities in the re-grading process. The appellant was dismissed for making a protected disclosure and as a result suffered occupational detriment. Her dismissal is therefore automatically unfair and, as such, she is awarded compensation equivalent to 18 months' remuneration based on the gross salary she was earning at the time of her dismissal.

[40]   With regards to the claim of notice pay, in view of the above compensatory order, I see no reason to add notice pay to her award.

[41]   Having regard to considerations of law and fairness, there is no reason why costs should not follow the result, both in this Court and in the court a quo.

Order

[42]   In the result, the following is ordered:

  1. The appeal is upheld with costs.

  2. The order of the court a quo is substituted with the following order:

    1. 'The applicant's dismissal constitutes an automatically unfair dismissal and the respondent is ordered to compensate the applicant in a sum equal to 18 months' salary.
    2. The respondent is to pay the costs of suit.'