Section 188A(11) of the LRA reads as follows: ‘Despite subsection (1), if an employee alleges in good faith that the holding of an enquiry contravenes the Protected Disclosures Act, 2000 (Act 26 of 2000), that employee or the employer may require that an enquiry be conducted in terms of this section into allegations by the employer into the conduct or capacity of the employee.’
In the scenario where an employer has instituted disciplinary action against the employee, what are the jurisdictional pre-conditions to be met before s188A(11) of the LRA could be applicable?
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- In terms of the Protected Disclosures Act 26 of 2000 (‘the Act’), disclosure means disclosure of information regarding any conduct of the employer or employee, made by an employee who has reason to believe that the information shows or tends to show, inter alia, an impropriety (e g a criminal offence having been committed or likely to be committed, or a person failing, or likely to fail, to comply with legal obligations).
- In terms of s9 of the Act, any disclosure made in good faith by an employee is protected if the following conditions are met:
- the employee who makes it reasonably believes that the information disclosed and the allegations contained in it are substantially fair
- the disclosure is not made for personal gain, excluding any reward payable, and
- in all circumstances it is reasonable to make a disclosure
- In terms of the Act, ‘occupational detriment’ means, inter alia, being subject to any disciplinary action, being dismissed, suspended, demoted, harassed or intimidated, being transferred against his/her will, etc.
- The requirement of good faith entails that the allegation of contravention must have the element of honesty and sincerity – the contravention must exist prima facie
- The labour court, in Mulaudzi v Property Practitioners Regulatory Authority (2023) 34 SALLR 77 (LC), identified the following jurisdictional preconditions before an employee may invoke s188A(11):
- the employee must have made a protected disclosure (a disclosure made to a legal adviser (s5), employer (s6), member of cabinet or executive council of province (s7), public protector or auditor general (s8)) – thereafter, the employer must have subjected the employee, who made the protected disclosure, to occupational detriment
- once subjected to occupational detriment, the employee has to allege, honestly and sincerely, that a causal connection exists between his/her protected disclosure and the occupational detriment meted out by the employer
- if any of the jurisdictional facts are absent, the relevant bargaining council, accredited agency or the CCMA lacks the jurisdiction to entertain the request that the enquiry be conducted
- The labour court, in the aforesaid matter, also indicated the following:
- if the CCMA, accredited agency or bargaining council accede to the request to utilise s188A(11), without the jurisdictional requirements having been met, the employer may review the decision in terms of s158(1)(g) of the LRA, on the grounds of legality (Nxele v National Commissioner: Department of Correctional Services and Others (2018) 39 ILJ 1799 (LC); Jacobs and Others v National Commissioner of SAPS and Another (J194/21)
- the request to conduct an enquiry in terms of s188A(11) does not terminate the internal disciplinary hearing – same is only terminated once the decision has been made by the body to accede to the establishment of such enquiry on the basis of the jurisdictional requirements having been met
- The fact that an employee is entitled to relief when an employer metes out occupational detriment, in terms of s186(2) of the LRA, does not exclude such employee from also utilising his/her civil remedies and this entails:
- the utilisation of the actio legis aquiliae to recover patrimonial losses, and
- the utilisation of the actio iniuriarum to claim non-patrimonial losses for injuries to the employee’s reputation (fama and self-worth (dignitas))
