TSB Sugar RSA Ltd (now RCL Food Sugar Ltd) v Dorey

Protected disclosures proved and LAC declined to interfere with the judgment of the labour court because the reason for dismissal was related to the disclosures and was automatically unfair and maximum compensation of 24 months was entirely appropriate.

“The fact that Dorey may have been over-zealous in her disclosures about the SHE statistics and the clinic registers, and was not able to sufficiently substantiate her concerns in that regard, does not detract from the legitimacy of the course she pursued with regard especially to the Lubisi and Shabangu incidents. These disclosures were not inaccurate or false; they were correct. Yet the reports reveal that in all probability Dorey was disciplined and dismissed partly on account of having made these disclosures. In the result, her dismissal was in contravention of the PDA and hence automatically unfair in terms of section 187(1)(h) of the LRA. The Labour Court thus did not err in its conclusion.
There is no basis for interfering with the Labour Court’s award of compensation. It had regard to all relevant considerations and exercised its discretion properly. There is also no reason why the costs of this appeal should not follow the result.” [paras 102-103]

Essence

Protected disclosures proved and even one disclosure under the PDA enough to warrant finding that dismissal related thereto is automatically unfair.

Decision

JA 86/2017: [2019] JOL 41072 ; (2019) ILJ 1224 (LAC): 15 August 2018

Disallowed appeal from judgment of  Moshoana AJ (as he then was) in the labour court on 3 May 2017.

Judges

JR Murphy AJA (R Sutherland JA and F Kathree-Setiloane AJA concurring)

Heard: 13 August 2018

Judgment: 15 August 2018

Related books

Darcy du Toit et al

Van Niekerk and Smit (Managing editors) et al Law@Work 4ed 612 pages (LexisNexis 2018) at 124, 140, 153, 273, 284

Myburgh and Bosch Reviews in the Labour Courts 1ed (LexisNexis 2016) at

Reasons

‘Section 3 of the PDA thus casts the net wide. If there is more than one reason for a dismissal, the PDA will be contravened if any one of the reasons for the dismissal is the employee having made a protected disclosure. The wide scope of protection is consistent with the purposes of the PDA which addresses important constitutional values and injunctions regarding clean government and effective public service delivery.” [para 95]

Quotations from judgment

Note: Footnotes omitted and emphasis added

[1] The appellant (“RCL”)1 appeals against the judgment of the Labour Court (Moshoana AJ) finding that RCL in dismissing the respondent (“Dorey”) had subjected her to an occupational detriment within the meaning of the Protected Disclosures Act2 (“the PDA”), thus resulting in her automatically unfair dismissal, and granting her 24 months’ remuneration as compensation. This appeal is with the leave of this Court

The factual background

[2] Dorey commenced employment with RCL on 1 July 2002 and was dismissed on 22 December 2011 with one month’s notice. At the time of her dismissal, Dorey was employed as a risk control officer reporting to Ms Elaine Herbst, RCL’s then Manager: Risk Control.

Dorey’s duties included, inter alia:

• compiling and managing the “injury on duty statistics”;
• compiling information and taking part in health and safety audits;
• liaison between different departments in relation to health and safety issues and incidents; and
• administering an integrated SHE (safety, health and environment) risk management system.

[3] Problems arose in the relationship between Dorey and Herbst when, on 12 July 2011, Dorey in error sent an e-mail to Herbst which was meant to be sent to her colleague, Dolly Veldsman. The e-mail made certain critical, albeit relatively innocuous comments about Herbst, to which Herbst took exception. The e-mail appears to have led to a breakdown of trust and co-operation between Herbst and Dorey which is at the heart of what followed.

. . . . .

[6] On 13 September 2011, Dorey requested a meeting with Jan de Villiers (“De Villiers) (the company secretary of RCL) to discuss “certain irregularities she felt were taking place” in respect of RCL’s health and safety obligations. Dorey said that she raised the following concerns:

(i) workplace incidents, accidents and diseases were not being reported and recorded in the prescribed manner and form;
(ii) RCL was not providing a safe working environment as it was legally obliged to do;
(iii) RCL was deliberately concealing injuries on duty from the external auditors (“NOSA”);
(iv) Snyman was illegally signing medical certificates of fitness for construction work on behalf of Dr Breytenbach; and
(v) mandatory workplace surveys (regarding noise, lighting, dust, heat etc.) had not been done for the previous two years as a consequence of RCL not being an accredited inspection authority (“AIA”).

. . . . .

[8] In terms of the Occupational Health and Safety Act3 (“the OHSA”), incidents causing injury must be reported and internally investigated. Injuries resulting in an employee not being able to do his normal work for 14 days, or where there is loss of a limb, must be reported to an inspector of the Department of Labour who may investigate the matter.4

Dorey alleged that the accident involving Lubisi was dealt with in a way intended to avoid the legal obligation to report it to the Department of Labour.

. . . . .

[16] On 11 November 2011, Dorey addressed the following e-mail to De Villiers:

“Our previous discussions refer:
During my tenure at the Risk Control Department I noticed certain discrepancies that aroused my concern with regard to the management of the following:
•Injury on Duty cases;
•SHE Statistics;
•Internal SHE audits;
•External SHE audits (NOSA);
•Clinic registers;
•Medical fitness certificates;
•Conflict of interest
I have obtained proof on some of the concerning issues and am willing to reveal the information to an independent party, i.e. investigator.
There are some instances where I have grounds for concern but cannot verify or dispel my concerns due to the fact that I don’t have access to the relevant information.
I am reluctant to reveal a list with the specific details to any person who is implied, for fear of tampering with evidence.
I undertake to give my full co-operation to any formal investigation.”

. . . . .

[24] Dorey maintains that she was never part of any investigation of her complaints. She was not given an opportunity to present her concerns to an independent investigator despite her stated willingness to make herself available to be questioned on the various cases to which she had drawn attention.

. . . . .

The disciplinary proceedings

[26] On 19 December 2011, Dorey was charged with various disciplinary offences and instructed to attend a disciplinary enquiry on 21 December 2011. The charges were:

(i) Absence without permission and/or abscondment on 9 December 2011 without prior arrangement and permission from management.
(ii) Failure to use the approved internal procedures to resolve a grievance with her superior.
(iii) Gross insubordination relating to the rearranging of furniture without prior consultation with management with the intent to frustrate and undermine management; the illegal and unlawful removal of a file containing confidential information from a secure place without permission from her superior and ordinarily communicating with management in a tone that displays impudence and cheekiness.
(iv) Inaccurate and false communication and/or publication and/or distribution of confidential information with the intention to undermine the reputation, credibility and good standing of the Risk Control Department and senior officials.

. . . . .

[36] Dorey appealed against her dismissal and led new evidence at the appeal. The appeal chairperson, Mr E Terblanche (“Terblanche”), dismissed the appeal and concluded that Dorey’s allegations against Herbst and De Villiers were unfounded and that she had acted with intent to discredit them and her department.

He also found that dismissal was the appropriate sanction, in particular, because Dorey refused to work with Herbst and had come to distrust De Villiers. The essence of Terblanche’s finding on the substantive issues reads as follows:

. . . . .

[37] The reports of both hearings do not include any specific findings regarding the improprieties alleged by Dorey. Although the issues appear to have been canvassed to some extent at the appeal hearing, the reports do not provide a full examination of, or any clear pronouncement upon, the correctness or accuracy of Dorey’s allegations that RCL acted in contravention of the applicable legislation in relation to the Lubisi, Shabangu and Snyman incidents.

Terblanche, without making his own independent determination of the legal and factual issues, seemed to accept the view of De Villiers that there were no irregularities. The tenor of the findings in both reports is that the disclosures were made with intent to discredit RCL, Herbst and De Villiers and were pursued unreasonably and aggressively.

Neither Terblanche nor Vermeulen testified in the Labour Court proceedings in elaboration of their findings.

The Labour Court proceedings

[38] Dorey submits that her dismissal was a direct result of and causally connected to the protected disclosures made to De Villiers.

But for the disclosures, she maintains, she would not have been dismissed, and thus her dismissal was automatically unfair in terms of section 187(1)(h) of the Labour Relations Act5 (“the LRA”) in that she was subjected to an occupational detriment in contravention of the provisions of the PDA and the LRA as a result of having made the disclosures.

She accordingly referred a dispute alleging an automatically unfair dismissal to the CCMA. After attempted conciliation on 16 January 2012, the dispute remained unresolved and a certificate of outcome was issued on that date.

The matter was then referred to the Labour Court in terms of section 191(5)(b) of the LRA.6

. . . . .

[41] The disclosures, Dorey contended, were thus disclosures of information regarding conduct of RCL or its employees which she had reason to believe indicated that RCL had:

(i) committed criminal offences in terms of the OHSA and the COIDA;
(ii) failed to comply with its legal obligations in terms of OHSA and COIDA; and
(iii) endangered the health or safety of its employees.

The disclosures were made to RCL in terms of section 6 of the PDA.

She contended further that the disciplinary action against her and her dismissal constituted occupational detriments as contemplated in the PDA and in contravention of section 3 of the PDA in that she was subjected to such occupational detriment on account or partly on account of having made protected disclosures in good faith to an authorised representative of the employer.

On this basis, she alleged that her dismissal was automatically unfair in terms of section 187(1)(h) of the LRA and sought maximum compensation in terms of the LRA.

[42] RCL contended in its response that Dorey was motivated to lay complaints against Herbst in order to induce it to take disciplinary action against her or to undermine her integrity on account of the relationship between them deteriorating to the point where they were no longer able to work with each other.

In the process, she became insubordinate and started making serious but false allegations against Herbst.

Dorey, it said, was not dismissed as a result of her making any legitimate complaints but for insubordination, disrespect and disregard for Herbst and for making false and malicious, unsubstantiated allegations.

[43] The trial commenced in June 2016 but was only concluded in March 2017. The Labour Court handed down its judgment on 3 May 2017. Dorey testified on her own behalf and called three other witnesses. De Villiers, Herbst and two other witnesses testified on behalf of RCL.

[44] The primary question for determination by the Labour Court was whether the reason for Dorey’s dismissal was a contravention of the PDA by RCL on account of or partly on account of her having made a protected disclosure as defined in the PDA, and thus amounted to an automatically unfair dismissal as contemplated in section 187(1)(h) of the LRA.

[45] Section 3 of the PDA provides:

“No employee may be subjected to any occupational detriment by his or her employer on account, or partly on account, of having made a protected disclosure.”

[46] An “occupational detriment” in relation to the working environment of an employee is defined in section 1 of the PDA to include, inter alia, being subjected to any disciplinary action, being dismissed or being otherwise adversely affected in respect of his or her employment including employment opportunities and work security.

[47] Section 1 defines a “disclosure” to mean:

“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 one or more of the following:

(a) that a criminal offence has been committed, is being committed or is likely to be committed;
(b) that the person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject;
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur;
(d) that the health or safety of an individual has been, is being or is likely to be endangered;
(e) that the environment has been, is being or is likely to be damaged;
(f) unfair discrimination as contemplated in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000); or
(g) that any matter referred to in paragraphs (a) to (f) has been, is being or is likely to be deliberately concealed.”

[48] A “protected disclosure” is defined by section 1 of the PDA to include a disclosure made to an employer in accordance with section 6 of the PDA.

Section 6(1) reads:

“Any disclosure made in good faith–
(a) and substantially in accordance with any procedure prescribed, or authorised by the employee’s employer for reporting or otherwise remedying the impropriety concerned; or
(b) to the employer of the employee where there is no procedure as contemplated in paragraph (a), is a protected disclosure.”

[49] “Impropriety” is in turn defined to mean any conduct which falls within any of the categories referred to in paragraphs (a)–(g) of the definition of “disclosure”.

[50] Section 4 of the PDA enacts remedies for employees subjected to occupational detriments for making protected disclosures. It provides that any employee who has been subjected, is subject or may be subjected to an occupational detriment in breach of section 3 of the PDA may approach the Labour Court for appropriate relief.

It further aligns the remedies with those available under the LRA by providing that for the purposes of the LRA, including the consideration of any matter emanating from the PDA by the Labour Court, any dismissal in breach of section 3 of the PDA is deemed to be an automatically unfair dismissal as contemplated in section 187 of the LRA and any other occupational detriment in breach of section 3 of the PDA is deemed to be an unfair labour practice.8

[51] Referring to the definition of “disclosure” in the PDA, the Labour Court held that what Dorey brought to the attention of De Villiers, particularly in relation to the Lubisi accident and the SHE statistics, was information alleging impropriety on the part of Herbst and others.

It concluded that on the objective facts Dorey had reason to believe that the information showed or tended to show failures to comply with legal obligations.9

Dorey was raising issues of non-compliance and thus the disclosure of information to De Villiers amounted to a disclosure within the contemplation of the PDA.

Relying on the decision in Radebe and another v Premier, Free State Province and others,10 it held that the phrase “tends to show” in the definition of “disclosure” cannot be equated to “show” and thus there is no requirement that the disclosed information conveyed to the employer must be factually accurate or true.11

If the employee reasonably believes the information is true, one may infer bona fides from the reasonableness of that belief. The Labour Court held that Dorey after analysing the records in relation to Lubisi reasonably believed that RCL was acting improperly and was thus bona fide in her disclosure.

It, however, made no explicit findings regarding the disclosures concerning Shabangu, the dust and noise surveys, the medical certificates of fitness etc.

[52] On the critical question of the link between the protected disclosure and the occupational detriment, the Labour Court opined as follows:

“For an employee to succeed, an employee must establish a causal link between his or her dismissal and the protected disclosure. Put it differently, an employee must produce evidence sufficient to raise the contravention of the PDA. Once that is done, the respondent bore the onus to prove that the applicant was dismissed for a fair reason.
The respondent alleged in its statement of defence that the applicant was dismissed for misconduct. She was guilty as charged in other words. The evidence of Herbst and De Villiers suggests that the applicant could not have faced disciplinary steps, which led to her dismissal. That being the case, the probabilities are that the dismissal was on account of having made the disclosure.
Closer scrutiny of the charges creates a connection between the disclosure and the charges. As an example, the applicant was charged with having illegally removed a file containing confidential information from a place without permission and following due process. It turned out in evidence that the file in question is that of Lubisi. The applicant’s case was that Lubisi was importable. Clearly she removed that file in order to disclose non-compliance to De Villiers.
Her providing the file to De Villiers was a disclosure, which is protected as she was intending to show the non-compliance. Another charge related to her publication of inaccurate information with an intention to damage the reputation of the Risk Control Department. It turned out in evidence that the said information related to clinical records or files. According to the applicant certain injuries on duty were not recorded properly in order to avoid reporting and also to obtain good NOSA audit ratings. The said information was provided to De Villiers in order to show the alleged manipulation. When she did so she was making a protected disclosure. Dismissing her on account of these two incidents amounts to an automatically unfair dismissal.
I therefore come to the conclusion that the applicant was dismissed for an impermissible reason. Her dismissal is automatically unfair . . .”

[53] The Labour Court had regard to the objects of the PDA to advance good, effective, accountable and transparent corporate governance in the interests of economic stability and social good, took account of Dorey’s humiliation while trying to serve the interests of RCL, and concluded that it was just and equitable to award the maximum amount of compensation equivalent to 24 months’ remuneration in the amount of R552 000.

The appeal

[54] RCL’s notice of appeal lists numerous grounds of appeal, many of which are repetitive and in some instances irrelevant or inconsequential. RCL essentially contends that the Labour Court erred in:

(i) finding that the disclosures made by Dorey to De Villiers were disclosures made in good faith and thus protected;
(ii) finding that Dorey had reason to believe that the disclosed information showed or tended to show an impropriety;
(iii) not indicating which of the improprieties in paragraphs (a)–(g) of the definition of “disclosure” constituted the basis of the finding that Dorey made protected disclosures;
(iv) not finding that Dorey had acted recklessly and sought unreasonably to disparage RCL;
(v) finding that Dorey established a causal connection between making a disclosure and her dismissal;
(vi) holding that the dismissal was automatically unfair in terms of section 187(1)(h) of the LRA; and
(vii) awarding the maximum amount as just and equitable compensation.

. . . . .

[56] The proper approach to the primary question in this appeal is:

  • first, to determine whether the various disclosures of information constitute disclosures as defined in section 1 of the PDA;
  • secondly, to decide if the disclosures are protected disclosures, as contemplated in section 1, read with section 6 of the PDA; and
  • thirdly, whether Dorey was subjected to an occupational detriment (discipline and dismissal) by RCL on account, or partly on account, of having made a protected disclosure.
  • The last enquiry requires careful consideration of the evidence regarding the reason for the dismissal to establish if the disclosure causally accounted or partly accounted for the dismissal.

. . . . .

[67] In the premises, there is no basis for holding that the disclosure of the information about not reporting Lubisi’s accident was not made in good faith. Consequently, the disclosure is a protected disclosure in terms of section 6 of the PDA.

The medical certificates of fitness

[68] In paragraph 14.7 of her statement of claim, Dorey pleaded that one of the protected disclosures she made was to inform Herbst in May 2010 that it was irregular to allow Snyman to sign medical certificates of fitness for construction work on behalf of Dr Breytenbach. Dorey raised the issue in general terms with De Villiers for the first time 18 months later in her e-mail of 11 November 2011.

. . . . .

[74] In the premises, the disclosures of information about the signing of the medical certificates of fitness to Herbst and De Villiers were protected disclosures in terms of section 6 of the PDA.

The SHE statistics

[75] The allegations under this head relate to the SHE statistics or information on workplace incidents used to calculate the DIFR of divisions being audited. A low DIFR means that there are fewer incidents and is a good reflection on RCL. The risk control department keeps a record of SHE statistics using information received from RCL’s clinics. The information is presented in the form of monthly injuries on duty statistics.

. . . . .

[79] Mr Mooki in his heads of argument analysed each of the 14 cases, demonstrating that the cases had indeed been properly dealt with and alleging that Dorey’s disclosures were made recklessly and in bad faith. Mr Van der Westhuizen in his heads of argument once again did not deal with or counter the analysis put forward or the submissions made by Mr Mooki.

In the circumstances, it is not possible to conclude on the probabilities that this information shows or tends to show any impropriety as contemplated in the definition of “disclosure” in section 1 of PDA. In the premises, Dorey has not proven that these disclosures were protected disclosures.

The clinic registers

[80] Dorey alleged that Herbst and Snyman manipulated clinic registers for the purposes of the NOSA audit. The clinic registers are kept at the clinic, where Snyman is the manager. The clinic register has columns for recording relevant information including, inter alia: the particulars of the injured person; the date, time and description of the incident; the nature of the injury; and the details of the treatment. The last three columns are headed “Date off”, “Date resume”, “Days absent”.

. . . . .

The disclosed information did not show or tend to show any impropriety and thus this disclosure was neither a disclosure nor a protected disclosure.

The health surveys and RCL’s position as an accredited inspection authority

[83] Dorey maintains that she told De Villiers in the meeting of 13 September 2011 that mandatory workplace surveys required in terms of OHSA (regarding noise, lighting, dust, heat etc.) had not been done for the previous two years as a consequence of RCL not being an accredited inspection authority (“AIA”) and that this too was a protected disclosure.

. . . . .

This disclosure is accordingly a protected disclosure.

Shabangu’s authority to draw blood

[86] In her e-mail of 22 November 2011 to De Villiers disclosing information about Shabangu drawing blood, Dorey raised three issues.

  • First, Shabangu was a clinic assistant not trained to do the work of a phlebotomist drawing blood for a viral load test.
  • Second, Shabangu sustained a needle injury exposing her to the risk of infection.
  • Third, Shabangu was placed on unpaid leave instead of injury leave.

[87] Two points about Shabangu’s drawing of blood are most pertinent.

  • First, in terms of regulation 401 of the Regulations made under the National Health Act13 (“the NHA”), only health providers trained at a health establishment specifically designated for drawing blood may draw blood intravenously. RCL’s clinic was not a designated health establishment.
  • Second, De Villiers conceded under cross-examination that his first conclusion about this matter, communicated to Dorey on 6 December 2011, namely, that there was nothing wrong with Shabangu drawing blood, was incorrect. He accepted, on information he received at a later stage, that Shabangu was not a health care provider and thus was not permitted to draw blood intravenously for that reason also.

. . . . .

There is no doubt that this disclosure is a protected disclosure.

Injury on duty leave

[91] In her e-mail of 22 November 2011, Dorey told De Villiers that Shabangu was given seven days’ unpaid leave instead of injury-on-duty leave. In her testimony, she expressed the view that Shabangu was entitled to such leave under COIDA because she was injured at work. Snyman explained that Shabangu had requested unpaid leave prior to the needle prick because she was experiencing family problems. Snyman had no authority to give injury-on-duty leave. Only the treating doctor had such authority and had not put her on sick leave.

There is insufficient evidence to conclude that Shabangu’s statutory or contractual rights were violated in any way. Shabangu may possibly have been entitled to paid leave in terms of her contract or under the Basic Conditions of Employment Act14 but there is insufficient evidence showing that she was illegally denied it. The disclosure of the information to De Villiers about this is accordingly not a protected disclosure.

[92] Likewise, the evidence regarding the dispute about whether Francine Mare, an employee who was granted sick leave rather than injury-on-duty leave after falling out of her wheelchair, is insufficient to conclude that RCL had failed to comply with its legal obligations and thus the disclosure of that information is not a protected disclosure.

The causal link between the protected disclosures and the occupational detriment

[93] Dorey, therefore, made four protected disclosures, namely,

  • those in relation to the Lubisi accident,
  • the signing of the certificates of fitness,
  • the noise and dust surveys and the
  • unlawful drawing of blood by Shabangu.

The crucial question is whether she was subjected to an occupational detriment (discipline and dismissal) on account, or partly on account, of having made any one of those four protected disclosures. The Labour Court held that she had been subjected to an occupational detriment partly on account of having made the disclosure about Lubisi.15

[94] In terms of section 3 of the PDA, an employee may not be subjected to any occupational detriment by his or her employer on account, or partly on account, of having made a protected disclosure.

The phrase “on account of” means “owing to”, “by reason of” or “because of the fact that”. The phrase is used to introduce the reason or explanation for something – for the purposes of the present discussion, the reason or explanation for the occupational detriment.

The word “partly” means “not completely”, “not solely”, “not entirely” or “not fully”.

A finding that an employee was subjected to an occupational detriment on account of having made a protected disclosure will be based on a conclusion that the sole or predominant reason or explanation for the occupational detriment was the protected disclosure;

whereas a finding that an employee was subjected to an occupational detriment partly on account of having made a protected disclosure will be to the effect that the protected disclosure was one of more than one reason for the occupational detriment.

[95] Section 3 of the PDA thus casts the net wide. If there is more than one reason for a dismissal, the PDA will be contravened if any one of the reasons for the dismissal is the employee having made a protected disclosure. The wide scope of protection is consistent with the purposes of the PDA which addresses important constitutional values and injunctions regarding clean government and effective public service delivery.

In City of Tshwane Metropolitan Municipality v Engineering Council of SA and another,16 the Supreme Court of Appeal favoured an extensive approach to interpreting the provisions of the PDA to give proper effect to its broad purposes, namely, the encouragement of whistle-blowers in the interests of accountable and transparent governance. It stated:

“A further difficulty with this approach to the nature of information under the PDA is that its narrow and parsimonious construction of the word is inconsistent with the broad purposes of the Act, which seeks to encourage whistleblowers in the interests of accountable and transparent governance in both the public and the private sector. That engages an important constitutional value and it is by now well-established in our jurisprudence that such values must be given full weight in interpreting legislation.

A narrow construction is inconsistent with that approach. On the construction contended for by Mr Pauw the threat of disciplinary action can be held as a sword of Damocles over the heads of employees to prevent them from expressing honestly held opinions to those entitled to know of those opinions. A culture of silence rather than one of openness would prevail. The purpose of the PDA is precisely the opposite.”

[96] The decision to dismiss Dorey was taken in the first instance by Vermeulen and confirmed on appeal by Terblanche. As mentioned earlier, they were not called to testify before the Labour Court. The evidence regarding the reasons and explanations for the dismissal of Dorey are contained in the reports of the disciplinary hearings, accepted in the pre-trial minute to be undisputed.

De Villiers and Herbst during their testimony made some passing reference to the reports, but did not testify cogently about the actual reasons for dismissal.

[97] The reports reflect that Dorey was found guilty and dismissed for:

(i) re-arranging the furniture without prior consultation with the intent to frustrate and undermine the authority of management;
(ii) illegally removing the Lubisi file from a secure place without permission and without following the correct procedure;
(iii) communicating with Herbst in an impudent or cheeky tone; and
(iv) disclosing inaccurate and false confidential information with the intention to undermine the reputation, credibility and good standing of the Risk Control Department and senior officials.

[98] Dorey’s handling of the Lubisi matter and her taking of the file from the board room (where the NOSA audit was being conducted) to De Villiers figured as a key reason for her dismissal; as did her alleged disclosing of information with the “intention to undermine the reputation, credibility and good standing” of RCL. The essence of this reason for dismissal is captured in Vermeulen’s finding on the fourth charge when he stated:

“Jan de Villiers gave feedback after the investigation into the allegations. NOSA was contacted in order to clear some of the allegations and this put Tsb in a very bad light.”

For the reasons discussed earlier, Dorey quite rightly did not accept NOSA’s conclusion about whether the Lubisi incident was reportable.

[99] Clearly Dorey’s stance rankled with RCL. This is further evident in the findings of Terblanche, the chairperson of the appeal hearing. He was of the view that Dorey had no cause or justification to disclose her trepidations about irregularity. As far as he was concerned, she merely offered “a build-up of incidents – unacceptable and highly destructive in terms of questioning all decisions etc. and undermining authority” amounting to insubordination reflecting “an element of intent”. He asked rhetorically:

“What was she trying to achieve – discredit? vindictive? – surely the incessant seeking of, in your mind, wrongful acts and omissions on the part of your superior does not reflect you trying to solve any perceived or real issues.”

[100] However, Terblanche did not offer any analysis of whether the disclosures made by Dorey regarding Lubisi, Shabangu, the AIA accreditation and the certificates of fitness were accurate and true. He did not distinguish between the various disclosures. Instead, he made a blanket finding that because some of the disclosures were not substantiated Dorey had acted vindictively to discredit RCL. But for the disclosures, it is unlikely that Dorey would have been dismissed.

Put differently, the disclosures materially contributed to her dismissal and were adequately connected to it.

[101] While Dorey undoubtedly is open to criticism for the way she may have gone about things, the fact remains that she was a risk control officer and had in the course of carrying out her duties discovered significant irregularities posing risks to RCL and its employees. Her relationship with Herbst was obviously a problem, but sight must not be lost of the fact that Herbst was equally open to criticism. The evidence supports the contention that Herbst was affronted by Dorey’s bringing the “green cards” issue to light and probably sought unjustifiably to constrain her, leading to antagonism.

[102] The fact that Dorey may have been over-zealous in her disclosures about the SHE statistics and the clinic registers, and was not able to sufficiently substantiate her concerns in that regard, does not detract from the legitimacy of the course she pursued with regard especially to the Lubisi and Shabangu incidents.

These disclosures were not inaccurate or false; they were correct. Yet the reports reveal that in all probability Dorey was disciplined and dismissed partly on account of having made these disclosures.

In the result, her dismissal was in contravention of the PDA and hence automatically unfair in terms of section 187(1)(h) of the LRA. The Labour Court thus did not err in its conclusion.

[103] There is no basis for interfering with the Labour Court’s award of compensation. It had regard to all relevant considerations and exercised its discretion properly. There is also no reason why the costs of this appeal should not follow the result.

[104] In the premises, the appeal is dismissed with costs.