Baxter v Minster of Justice and Correctional Services and Others (D1171/2014) [2018] ZALCD 11 (1 August 2018)

Principle:

To constitute a protected disclosure, there must be a bona fide belief that the information disclosed is true and cannot be motivated by ulterior motive, revenge or malice.

Facts:

Mr Baxter was employed as the Area Commissioner: Kokstad in the Department of Correctional Services at the C-Max prison. The Department undertook various learnership programs through which candidates who participated in them could thereafter be employed by it. Mr Baxter's daughter successfully applied for one such learnership program. Her appointment was approved by the Acting Regional Commissioner. According to a later report, Mr Baxter allegedly influenced the appointment of his daughter. As a consequence the appointments for the learnership program were suspended pending the outcome of an investigation.

On the following day Mr Baxter sent a telefax to his superior requesting an investigation to be conducted against the entire learnership program as well as against the 2013 appointments of five officials. Mr Baxter addressed another letter to his superior in which he requested an audience with the Acting National Commissioner and the Minister of the Department about corruption and abuse of power. Subsequently Mr Baxter was dismissed on a number of different charges which included his interference in the learnership selection process.

Mr Baxter challenged his dismissal in the Labour Court. His complaint was that after disclosing to the Department that he had a reason to believe that there was conduct of an employee of the Department which showed a failure to comply with a legal obligation, the Department subjected him to disciplinary action by suspending and thereafter dismissing him. In other words he was subjected to an 'occupational detriment' after making a protected disclosure in terms of the Protected Disclosures Act 26 of 2000.

The Labour Court held that the dismissal was not automatically unfair as envisaged in section 187(1)(h) of the LRA as it did not constitute an occupational detriment in terms of the provisions of the PDA. The dismissal of Mr Baxter was substantively and procedurally fair. The basis for the finding was that Mr Baxter was driven by ulterior motive, revenge or malice, and disclosure is only protected if it is made in good faith. The court said that to enjoy protection, the employee must bona fide have believed that the information disclosed was true.

Extract from the judgment:

(Cele,J:)

[54]   Disclosure is only protected if it is made in good faith. Therefore to enjoy protection, the employee must bona fide have believed that the information disclosed was true. In the case of SA Municipal Workers Union National Fund v Arbuthnot the Labour Appeal Court held that good faith requires that the disclosure is made without ulterior motive, revenge or malice. The court accepted that although Arbuthnot had reasonably believed that the information disclosed was substantially true, it did not accept that the disclosure had been made in good faith. It was held that the disclosure was not protected.

[55]   In the present matter a conclusion is irresistible that whatever was disclosed to Ms Jolingana and to Mr Nxele by Mr Baxter was driven by ulterior motive, revenge or malice. I therefore conclude that the provisions of the PDA find no application in this case.