Communication Workers Union & Others v Mobile Telephone Networks (Pty) Ltd
Labour Court, May 2003
This decision is of interest because it appears to be only the second that deals with the application of the Protected Disclosures Act, 26 of 2000 (the PDA). An interim order had been granted in terms of which the employer was interdicted from proceeding with disciplinary action against the employee and his union until the final determination of the unfair labour practice dispute referred to the CCMA. The union and the employee had sought relief on the basis that the pending disciplinary hearing and the suspension were occupational detriments in terms of the PDA.
On the return day, the company sought to have the interim order discharged. It did so primarily on the basis that the employee had not qualified for protection under the PDA.
The Court held that the purpose of the PDA is to protect an employee, whether in the private or public sector, from being subjected to any occupational detriment on account of having made a protected disclosure. The PDA encourages employees to disclose criminal or irregular conduct in the workplace, and protects employees against reprisals as a result of these disclosures.
A "disclosure" is defined in the PDA as any disclosure of information regarding any conduct by an employer, or an employee of that employer, which is made by an employee who has reason to believe that the information concerned shows amongst other reasons that a criminal offence has been committed or that a person has failed to comply with any legal obligation. An "occupational detriment" is broadly defined to include any disciplinary action, harassment, intimidation, or other disadvantage.
The employee had alleged that a particular recruitment agency was the sole agency supplying temporary employees to his office. He circulated e-mail to MTN staff questioning the company's recruitment procedures, and suggested that the arrangement between the agency and the company was irregular. He later received a notice of suspension, and was told to attend a disciplinary hearing. The charges against him were numerous, including an allegation that he had intentionally and deliberately circulated e-mail "insinuating that management of MTN are corrupt and/or colluding with various employment agencies in corrupt activities."
The Court had to decide whether his communications constituted a protected disclosure as defined by the PDA. If the Court granted a final order, MTN would be precluded from proceeding with a disciplinary enquiry on the basis that the threat of an enquiry was an occupational detriment.
The Court referred to Grieve v Denel (Pty) Ltd (2003) 24 ILJ 551(LC), the only other reported case dealing with the PDA. In that case, the Court found that the disclosure made was clearly indicative of a breach of legal obligations and possibly criminal conduct on the part of the employer concerned. In the present case, the Court considered that the only information proffered by the employee was a statement that the agency was being used as a sole agency to supply temporary staff. He had offered no information indicating impropriety on the part of MTN management, and the emails he circulated contained no more than the expression of a subjective opinion. This was not "information" for the purposes of the PDA.
The Court also held that a connection must be shown between the disclosure and the occupational detriment, and if this can be proved, then the protections of the PDA should apply. In addition, to be protected, a disclosure must be made in accordance with a procedure authorised by the employer. By failing to comply with MTN's procedure, the employee was not covered by the PDA's provisions.
The applicants failed to establish a clear right. The rule and temporary interdict was discharged with costs.
The PDA will no doubt feature more regularly in Labour Court proceedings. Its protections are far-reaching, but its provisions are complex. Expert advice is recommended in "whistle blower" disputes.