SUMMARY

Section 187 (1) (h) of the Labour Relations Act 66 of 1995 (“LRA”) provides that dismissing an employee for making a “protected disclosure” is an automatically unfair dismissal. A “disclosure” in terms of Section 1 of the Protected Disclosures Act 26 of 2000 (“PDA”), includes a disclosure by an employee of information which the employee reasonably believes shows wrongdoing on the part of the employer. This can include the existence of any health and safety risks at the workplace.

The disclosure will be protected if:

1. the employee has reason to believe he/she will suffer an occupational detriment if the disclosure is made directly to the employer; or that in such an event, evidence of the impropriety will be concealed or destroyed by the employer; or the employee has previously disclosed the impropriety to the employer and no steps were taken to address it; or that the impropriety is of an exceptionally serious nature; and
2. taking all factors into consideration, it is reasonable for the employee to make the disclosure.

In the absence of meeting the necessary requirements the disclosure will be unprotected and any subsequent dismissal will not be regarded as automatically unfair. The legitimacy and fairness of such dismissal will nevertheless still need to be determined having regard to the particular facts of the matter.

COURT’S DECISION

The case of Beurain and Leslie Martin N.O. Public Health and Social Development Sectoral Bargaining Council, and others C16/2012, concerned a hospital employee who published complaints about a number of perceived health and safety concerns at the hospital on Facebook (in particular concerns about the state of the toilets at the hospital and the stench emanating therefrom). Prior to the publication, he wrote letters to the doctor in charge of staff health noting his concerns which letters were duly responded to by the doctor. The employee then published his complaints on Facebook and included pictures of the alleged unsanitary conditions.

In response his employer warned him on several occasions to stop publishing the pictures and complaints. Notwithstanding such warnings the employee nevertheless continued to do so and was eventually dismissed for gross insubordination. He argued that his dismissal was automatically unfair on the basis that the publication constituted a protected disclosure.

In determining whether the publication constituted a “protected disclosure,” the Labour Court began by assessing the reasonableness of the employee’s belief that the publication disclosed an impropriety i.e. a health risk to patients and employees. The Court held that the employee’s belief was not reasonable in the circumstances because the employer had taken note of the concerns and given him a reply comprehensively addressing such concerns.

The Court held that in any event, because the stench was already known and experienced by everyone at the hospital, there was nothing to ‘disclose’ as “notorious information cannot be the subject of disclosure.” The publication was therefore not a “disclosure” for the purposes of the PDA.

Furthermore, even if in the event of the publication being regarded as protected, it would not be a “protected disclosure” because the employee did not comply with statutory procedures which stipulate that an employee can only make such a disclosure after the concern has been made known to the employer and the employer has not taken any steps to address it. In this case, the hospital had taken steps to address the concern after the employee’s initial letter to the doctor in charge by setting up a programme to evaluate the repair, maintenance and management of the ablution facilities.

Moreover, because the solution lay ultimately with the Department of Health, publishing the complaints online and appealing to the international community served no purpose. As such, it was not reasonable in the circumstances to make the disclosure. The Court concluded that because the publication was not a protected disclosure the dismissal was therefore not automatically fair.

Importance of the case

Employees should be aware that not all publications will be protected under the PDA and that proper procedure must first be followed before a disclosure is protected. The employee should ensure that when making a disclosure, such disclosure is reasonable in the circumstances and conducted in a responsible manner in accordance with the necessary legislative precepts.

Written by Jacques van Wyk, Director; and Andre Van Heerden, Associate, Werksmans Attorneys