Wild and Unsubstantiated allegations do not constitute Protected Disclosure

This analysis by John Grogan is extracted from the latest Labour Law Sibergramme, published on 03 November 2015 by Siber Ink. For expert analysis of new labour cases in South Africa, subscribe to the Labour Law Sibergramme by clicking here

John v Afrox Oxygen Ltd
(JS 532/11) [2015] ZALCJHB 237 (4 August 2015), unreported (Molahlehi J)

Ms John objected when management refused to accept her proposal that certain employees be upgraded. She had told the Department of Labour that, by refusing to re-grade employees as she had suggested, the respondent was distorting the information supplied to the Department of Labour concerning income differentials.

John was fired for her pains. She invoked the Protected Disclosures Act 26 of 2000, and claimed that her dismissal was automatically unfair. Afrox contended that John was dismissed for “incompatibility”.

Disclosed information is regarded as protected if it relates to the conduct of an employer and if it is disclosed by an employee who has reason to believe that the employer has failed to comply with a legal obligation or has committed a criminal offence.

The court accepted that an employee who makes a protected disclosure may not be dismissed. But the burden of proving that the disclosure was protected rested on John.

While a belief need not necessarily be correct to be reasonable, wild and unsubstantiated allegations do not enjoy protection. The “information” John disclosed was both wild and unsubstantiated.

The court found that the allegation that Afrox was distorting reports to the DOL was devoid of the truth. They were so wide of the mark that the court could not even accept that John herself believed the allegation. She was unable under cross-examination to explain several of her allegations, or to point to the provisions of the labour legislation which she claimed that the company was flouting.

John therefore failed to make out a case that the “information” she had disclosed was worthy of protection or that her belief that Afrox was acting unlawfully was reasonable.

The court declined to deal with the fairness of the dismissal for incompatibility as that issue did not fall within its jurisdiction, but dismissed the automatically unfair dismissal claim.

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