Kunene v Akani Egoli (Pty) Ltd t/a Gold Reef City

Citation: [2026] ZALCJHB 56

Presiding Judge: Tshisevhe AJ

Court: Labour Court of South Africa, Johannesburg

Nature of the Application

[1] This was an application where the Applicant sought compensation after he was subjected to an occupational detriment for making a protected disclosure in terms of sections 6 and 9 of the Protected Disclosures Act 26 of 2000 (the PDA).

Factual Matrix

[6]–[14] The Applicant, employed as Producer Marketing since 2021, applied for a position of Events Manager advertised on 27 September 2023 but was not shortlisted. On 11 October 2023, he was told he did not qualify as he only had 2 years of relevant experience. He took his CV to Ms Kathy Govender, who agreed he qualified but indicated that Mr Gareth Kaschule, the Regional Marketing Manager, did not want him appointed as he preferred someone with Theatre experience.

[9]–[12] On 21 December 2023, the Applicant lodged a grievance against Mr Kaschule for unfair labour practice. At the grievance hearing on 15 January 2024, he produced a copy of the successful candidate's CV, alleging she did not meet minimum requirements and was handpicked by Mr Kaschule. On 24 January 2024, he was interrogated on how he obtained the CV, which he viewed as retaliation. Subsequently, the Applicant and a colleague were charged with breaches of the Protection of Personal Information Act 4 of 2013 (POPIA).

[13] The Applicant was charged with: (i) breach of POPIA/revealing confidential information to unauthorised persons; and (ii) gross dishonesty, alternatively, giving false statement or evidence. He was found guilty of violating the whistleblower policy and given a warning.

Legal Framework

[49]–[56] The Court set out the relevant statutory definitions from the PDA and LRA:

"[49] Section 1 of the PDA defines impropriety as: 'any conduct which falls within any of the categories referred to in paragraphs (a) to (g) of the definition of 'disclosure', irrespective of whether or not- (a) the impropriety occurs or occurred in the Republic of South Africa or elsewhere; (b) the law applying to the impropriety is that of the Republic of South Africa or of another country;' [53] Section 1 of the PDA defines a 'disclosure' and a 'protected disclosure' as follows: 'disclosure' means any disclosure of information regarding any conduct of an employer, or of an employee or of a worker of that employer, made by an employee or worker 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 a 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 had 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 Chapter II of the Employment Equity Act, 1998 (Act 55 of 1998), or the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 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; 'protected disclosure' means a disclosure made to- (a) a legal adviser in accordance with section 5; (b) an employer in accordance with section 6; (c) a member of Cabinet or of the Executive Council of a province in accordance with section 7; (d) a person or body in accordance with section 8; or (e) any other person or body in accordance with section 9... [55] An 'occupational detriment' is defined as: '(a) being subjected to any disciplinary action; (b) being dismissed, suspended, demoted, harassed or intimidated; (c) being transferred against his or her will; (d) being refused transfer of promotion; (e) being subjected to a term or condition of employment or retirement which is altered or kept altered to his or her disadvantage; (f) being refused a reference, or being provided with an adverse reference, from his or her employer; (g) being denied appointment to any employment, profession or office...'"

[56] Section 186(2)(d) of the LRA defines unfair labour practice related to protected disclosure:

"any unfair act or omission that arises between an employer and an employee involving an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act."

Judicial Analysis

[62]–[67] The Court applied the test from Baxter v Minister of Justice and Correctional Service and others [2020] 10 BLLR 968 (LAC):

"[62] In Baxter... the Labour Appeal Court (LAC) was instructive as setting out the test that must be satisfied in order for an applicant to succeed in a claim of an automatically unfair dismissal premised on a protected disclosure. The first leg is to prove that a protected disclosure as defined in the PDA was made to the employee's employer in good faith. The second leg is to prove that the disclosure was the main, proximate or most likely cause of the dismissal. The LAC stated as follows in this regard: '[64] In order to succeed in his claim for automatically unfair dismissal, the appellant was therefore required at trial to establish the following disclosed information regarding the conduct of an employee... of the department to his employer; ii) he had reason to believe the information showed or tended to show the failure or potential failure to comply with any legal obligation to which that employee was subject; iii) the disclosure was made in good faith; and iv) he was disciplined, suspended and dismissed on account or partly on account of having made the disclosure.'"

[64] The Court cited Nxumalo v Minister of Correctional Services and Others (2016) 37 ILJ 177 (LC):

"The PDA is a four staged process entailing firstly, the analysis of the information to determine whether there is a disclosure. Secondly, where there is a disclosure such has to be determined if it is protected. Thirdly, a determination is to be made whether the employee was subjected to any occupational detriment. Fourthly, an assessment of the appropriate remedy is then to be finally made."

[64]–[66] On the standard of belief:

"The employee does not have to prove the correctness of the disclosed information, only a reason to believe that there were acts of impropriety. The LAC in the case of SA Municipal Workers Union National Fund v Arbuthnot (2014) 35 ILJ 2434 (LAC) stated that the 'requirement of 'reasonable belief' does not entail demonstrating the correctness of the information because a belief can still be reasonable even if the information turns out to be inaccurate'. Similarly, in Chowan v Associated Motor Holdings (Pty) Ltd and Others, the court held that the employee's subjective belief that she was being unfairly discriminated against was reasonable for purposes of the PDA. Because the disclosure was made in good faith, it constituted a protected disclosure, notwithstanding disputes about the underlying facts. Similarly, in John v Afrox Oxygen Limited, the Labour Appeal Court reaffirmed that the test is not whether the information itself is objectively correct, but whether the employee's belief in its truth is reasonable."

[68]–[78] The Court found the Applicant's evidence compelling and noted concessions by the Respondent's witnesses:

"[68] Therefore, in casu, the Applicant successfully discharged this burden and went beyond the test in that, he even proved that the allegations are correct as a result of concession during the hearing of this matter and there is no need to infer his bona fides as it is apparent, as outlined below. [69] It is important to accentuate that evidence before me suggest that Mr Kaschula's conduct prior and during the interview is questionable... [75] I should state that Mr Kaschule was a prevaricate witness to say the least. [76] This version was contradicted by the cv of Ms Ashleigh Scott-Roux as well as the evidence of Ms Naicker and Ms Govender who testified that she did not have post matric qualifications, because if she had same, there would be no need to exercise the said discretion. [77] It is therefore shocking to learn that senior members of Management can try to mislead the court under oath to this level."

[80]–[83] On internal disclosure:

"[80] The South African approach is consistent with the approach in Canada, the United Kingdom and the United States of America, the scheme of the PDA encourages internal procedures and remedies to be exhausted before the disclosure is made public. [81] I have no doubt that the Applicant tried, by all means, to have the matter addressed internally through a grievance, however, the employer did not want to hear any of it. [82] On the other hand, as per the evidence of the Respondent's witness Mr Rhyno Earl, they never bothered to investigate the allegations and what they have done is not enough because they could have easily found the acts of impropriety attributed to Mr Kaschule. [83] In my view the employer must take reasonable steps to investigate the allegations. The employer should be given a chance to explain or correct the situation."

[103]–[104] Causation:

"[103] As indicated above, the Respondent argued that the Applicant was disciplined for having committed misconduct as he violated POPI Act. In my view, the misconduct charges emanate from the protected disclosure. In the premises, I find that the protected disclosure was the dominant reason for the Applicant's disciplinary action/hearing. [104] It follows from the above that the Applicant has satisfied the causation test. I find that his protected disclosure was the main and proximate cause for his disciplinary action."

Appropriate Relief and Quantum

[106]–[117] Section 4 of the PDA permits an employee subjected to occupational detriment to approach any court with jurisdiction for appropriate relief. The Court exercised its discretion on quantum:

"[117] It is trite that when deciding on the quantum of compensation to be awarded, this Court exercises a discretion. This discretion was enunciated in Le Monde Luggage CC t/a Pakwells Petje v Dunn NO and Others (2007) 28 ILJ 2238 (LAC) at para 30, as thus: 'The compensation which must be made to the wronged party is a payment to offset the financial loss which has resulted from a wrongful act. The primary enquiry for a court is to determine the extent of that loss, taking into account the nature of the unfair dismissal and hence the scope of the wrongful act on the part of the employer. This court has been careful to ensure that the purpose of the compensation is to make good the employee's loss and not to punish the employer.'"

[111]–[113] The Court cited Tshishonga v Minister of Justice and Constitutional Development and Another (2007) 28 ILJ 195 (LC):

"[111] In the case of Tshishonga... the court held that the more serious the nature of the occupational detriment to which the employee is subjected the greater the compensation. Hence dismissal attracts compensation of as much as twenty-four month's remuneration... [112] The longer the dispute endures, the greater the stress on the employee and the higher the compensation should be. This controversy has endured for almost four years. [113] Employers who act inappropriately against whistleblowers should expect to be fittingly sanctioned. The sanction should be used as deterrence to other employers who do not take strides to protect whistleblowers."

Order

"1. The Respondent is ordered to pay the Applicant an amount of R229 600, subject to statutory deductions, which amount represents eight (8) month' salary. 2. The Respondent is ordered to pay reasonable costs incurred by the Applicant in prosecuting this application, such as those stated in paragraph 124 above."