Results 1 to 1 of 1

Thread: Whistle blowing and the effect thereof on employer

  1. #1
    Email problem
    Join Date
    Jan 2010
    Thanked 22 Times in 14 Posts

    Whistle blowing and the effect thereof on employer

    We are all aware of the fact that corruption in South Africa is on the increase. We read about and hear of prominent business people, politicians, high ranking police officials being accused of corruption and nepotism etc etc etc.

    The Protected Disclosures Act 26 of 2000 (PDA) was introduced as a possible countermeasure for corruption. In particular the aim was to create a safe environment for the person who reports such conduct, hereinafter referred to as the whistle-blower.

    In Minister for Justice and Constitutional Development and Another v Tshishonga [2009] BLLR 862 (LAC), the applicant appealed against the judgment of Pillay J, in which it was ordered to pay Tshishonga 12 months’ compensation.

    For a full discussion of this facts of this case, please follow the link to my blog

    Tshishonga was suspended and called to appear before a disciplinary inquiry after he had made certain allegations to the media. These allegations were aimed at the then Minister, mr Maduna. The inquiry commenced on 12 December 2003 and concluded on 2 June 2004. The chairperson submitted his findings on 20 June 2004. He held that Tshishonga’s disclosures were protected disclosures in terms of the Protected Disclosures Act 26 of 2000 (PDA) and Tshishonga was found not guilty.

    Tshishonga thereupon sued his employer on the basis that his suspension and disciplinary proceedings constituted an ‘occupational detriment’.

    The Labour Court, per Pillay J, found for Tshishonga and ordered the appellant to pay him 12 months’ compensation. The reasons for the award is also set out in my blog.

    The appellant appealed and argued that Pillay J had erred in awarding 12 months’ compensation. They submitted that at no time did Tshishonga suffer dismissal and that he received his normal remuneration for the entire time during the disciplinary proceedings. Subsequently, Tshishonga’s services were terminated by mutual agreement in terms of which Tshishonga would receive his remuneration up to retirement age, taking into account projected salary increases and inflation. In addition, he received his pension benefits, also to retirement age.

    Davis JA (with Zondo JP and Jappie JA concurring) held that acts, which amount to an occupational detriment (other than dismissal), constitute an unfair labour practice. In terms of s 94(4) of the Labour Relations Act 66 of 1995 (LRA) the compensation that may be awarded to an employee in respect of an unfair labour practice must be ‘just and equitable’ and may not be more than 12 months’ remuneration. Therefore, once it is found that an employee has been subjected to an occupational detriment, the court must determine what compensation would be just and equitable, bearing in mind that it may not be more than 12 months’ remuneration. The reference to remuneration in s 194(4) is ‘purely as a means of capping the amount of the award so ordered’. By contrast, the court a quo used Tshishonga’s remuneration as the basis of the quantification of the award and by doing so, erred in the interpretation of s 194(4).

    In determining what would be ‘just and equitable’ compensation, the following factors would be relevant
    • the embarrassment and humiliation suffered by Tshishonga;
    • the denigration by being referred to as a ‘dunderhead’ by the then Minister;
    • the Minister stating that Tshishonga was ‘being rapped over the knuckles for poor performance’;
    • Tshishonga being moved into a non-existent position with no work or instructions;
    • Tshishonga being subpoenaed to testify before the lead liquidator, Mr Motala, who was implicated in the disclosures, resulting in Tshishonga having to employ an attorney to defend him at a huge cost; and
    • Tshishonga having to receive trauma counseling.

    Most of these constituted non-patrimonial loss and in determining the appropriate compensation, the court had to draw from case law relating to the award of a solatium in terms of the actio injuriarum. The court held that from these cases, what is relevant, are the seriousness of the iniuria, the circumstances in which the infringement took place and the conduct of the defendant.

    The Labour Appeal Court accordingly held that the starting point for the award of compensation was the patrimonial loss suffered by Tshishonga, namely, the amount of R177 000 incurred by him in defending the allegations against him. A solatium should then be added. In this regard, the court held that a significant solatium was appropriate because Tshishonga had suffered an occupational detriment for being a whistle-blower. In the court’s view, an amount of R100 000 was appropriate. The court accordingly reduced the amount of compensation due to Tshishonga to R277 000.

    The effect hereof is, is that the whistleblower may not be suspended or dismissed for reasons based on the whistleblowing. It can not be argued by the employer that the whistleblowing influenced the relationship of trust between the employer and the employee, especially if the allegations made by the employee was aimed at the employer.

  2. Thank given for this post:

    Dave A (15-Feb-10), wynn (15-Feb-10)

Tags for this Thread

Did you like this article? Share it with your favourite social network.

Did you like this article? Share it with your favourite social network.

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts