Duncan v Swiss-South African Co-Operation Initiative and Others (JS140/19) [2023] ZALCJHB 110 (18 January 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JS140/19

In the matter between:

KENNETH DUNCAN Applicant and SWISS-SOUTH AFRICAN CO-OPERATION INITIATIVE First Respondent HELENE BUDLIGER ARTIEDA N.O. Second Respondent JANNIE ISAACS N.O. Third Respondent RACHAEL MADZIWANYIKA N.O. Fourth Respondent DAVID DANIEL MOLOTO N.O. Fifth Respondent SULLIVAN JOSEPH O’CARROLL N.O. Sixth Respondent THERO MICARIOS LESEGO SETILOANE N.O. Seventh Respondent

Heard: 21 to 24 August 2022

Written Closing Arguments delivered: 14, 22 and 28 September 2022

Delivered: 18 January 2023 (This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing-down is deemed to be 10h00 on 18 January 2023.)

JUDGMENT

PHEHANE, J

Introduction[1]

[1] The applicant (Mr. Duncan) was dismissed from the employ of the first respondent (the Swiss-South African Co-operative Initiative Trust – SSACI) by its Board of Trustees (BOT) on 31 December 2018. Pursuant and to lodging an unfair dismissal dispute at the Commission for Conciliation, Mediation and Arbitration (CCMA), Mr. Duncan approaches this Court in terms of section 187(1)(h) of the Labour Relations Act[2] (LRA) alleging an automatically unfair dismissal premised on having made a protected disclosure.

[2] SSACI is a Trust registered in terms of the Trust Property Control Act.[3] It is a non-profit organisation with the Department of Social Development. SSACI had initially been funded by the Swiss Government, but thereafter, became self sustainable. Mr. Duncan was an employee of SSACI since 1 March 2001, initially holding the position of Programme Manager and at the time of his dismissal, he held the position of Chief Executive Officer (CEO) of SSACI and the Secretary of SSACI’s BOT. The second to seventh respondents are members of the BOT of SSACI. They served as trustees during November 2018. They are cited in these proceedings in their official capacity.

Summary of Mr. Duncan’s case

[3] In summary, Mr. Duncan’s case is that in 2010, SSACI ran an apprecticeship programme called the “Hospitality Skills for 2010 Project” (HSP) which was a dual system vocational training model, incorporating both technical and work-based learning. SSACI was an industry leader in South Africa that ran dual based vocational training programmes, such that the Department of Higher Education

adopted some of its programmes. The HSP was a Swiss Embassy Hospitality Initiative. The second respondent, who was the Swiss Ambassador at the time (the Ambassador), informed SSACI’s BOT during a meeting in February 2017, that she wanted to obtain

private funding for a Swiss Embassy Project (“the Hopitality Programme”). Mr. Duncan was requested to provide her with the concept document of the HSP in order to assist the Ambassador with the formation of the initiative as described (the Hospitality Programme). Mr. Duncan did so (contained in his aide-memoire), on the understanding that SSACI would have role in this initiative, which role would at a later stage, be made known to SSACI. It subsequently came to Mr. Duncan’s attention from community members in the industry in which SSACI participates and to which it contributes, that the Ambassador and seventh respondent (Mr. Setiloane), were raising funds for the Hospitality Programme to the exclusion of SSACI. In Mr. Duncan’s view, their conduct constituted a conlfict of interest in relation to their fiduciary

duties as Trustees, as they were pursuing a project that was contrary to the interests of SSACI. He contends that he made a protected

discloure when he brought this issue that he perceived to be a conflict of interest, to the attention of the Chairman of the BOT,

the third respondent (Mr. Isaacs) in an email dated 12 July 2018.[4] Mr. Duncan intended that the matter be investigated and dealt with as the BOT saw fit. In a surprise turn of events, Mr. Duncan was accused by the BOT of making false and malicious accusations against the Ambassador and Mr. Setiloane that impugned their integrity. He contends that he suffered an occupational detriment in that he was dismissed for misconduct on account of having made a protected disclosure. He accordingly submits that his dismissal is automatically unfair. Mr. Duncan also contends that his dismissal was procedurally and subtantively unfair. Further, that the respondents breached the terms of his employment contract. The relief sought by Mr. Duncan is confined to compensation equitable to 24 months’ remuneration.[5] Mr. Duncan has since reached the retirement age of 65 in May 2022.

Summary of the opposition

[4] The respondents oppose this referral. They deny that Mr. Duncan made a protected disclosure. They deny that Mr. Duncan’s email of 12 July 2018[6] on which he relies as being the protected disclosure, is not made to an “employer” as defined in the Protected Discloures Act[7] (PDA). The respondents contend that there is no employment relationship between Mr. Duncan and the Ambassador and Mr. Setiloane; the Ambassador and Mr. Setiloane are not employers and are not employees,[8] thus, the PDA is inapplicable and this should be the end of the matter.

[5] Should the Court find that the PDA is applicable, then the respondents contend that the disclosure by Mr. Duncan is not bona fide, as at the time when Mr. Duncan made the purported protected disclosure, he admitted that there was antagonism between himself and the Ambassador. Further, Mr. Setiloane had not yet been appointed as a Trustee. In addition, Mr. Duncan did not take this Court into his confidence by dilvulging the identity and experience of the legal representative who advised him to raise the complaint about the Ambassador and Mr. Setiloane with Mr. Isaacs, as stated in his email of 12 July 2018,[9] thus this Court is not in a position to assess whether or not the advice Mr. Duncan relied upon was made in good faith. At best, the respondents contend, Mr. Duncan’s legal advisor is a fiction.

[6] The respondents further contend that Mr. Duncan has not tendered any evidence of any miscarriage of justice that has occurred or that is likely to occur or any deliberate concealment of information by the Ambassador and Mr. Setiloane.[10] They contend that Mr.Duncan failed to demonstrate that he reasonably believed that the information he disclosed pointed to some illegality or irregularity.[11] In the circumstances, the respondents submit that the disclosure by Mr. Duncan is not a protected disclosure as defined in the PDA.

[7] The respondents accordingly deny that Mr. Duncan was dismissed on account of having made a protected disclosure. They submit that Mr Duncan was dismissed on account of misconduct – he made malicious and false accusations against the Ambassador and Mr. Setiloane in circumstances where he knew the Hospitality Programme was brought to the attention of the BOT by the Ambassador in February 2017 (approximately a year prior to his purported protected disclosure); further, that the Hospitality Programme was an initiative of the Swiss Embassy to be privately funded, and SSACI was not guaranteed a role in this initiative.

Applicable legal framework

[8] On the evidence, SSACI is a trust and the second to seventh respondents are appointed as trustees. They have received letters of authorisation in this regard from the Master of the High Court.

[9] Section 1 of the Trust Property Control Act defines a ‘trust’ as follows:

‘…the arrangement through which ownership in property of one person is by virtue of a trust instrument made over or bequeathed –

(a) to another person, the trustee, in whole or in part, to be administered or disposed of according to the provisions of the trust instrument for the benefit of the person or class of persons designated in the trust instrument or for the achievement of the object stated in the trust instrument; or

(b) to the beneficiaries designated in the trust instrument, which property is placed under the control of another person, the trustee, to be administered or disposed of according to the provisions of the trust instrument for the benefit of the person or class of persons designated in the trust instrument for the achievement of the object stated in the trust instrument, but does not include the case where the property of another is to be administered by any person as executor, tutor or curator in terms of the provisions of the Administration of Estates Act, 1965 (Act 66 of 1965)’.

[10] The trust instrument is the Deed of Trust which provides as follows insofar as the objects of the trust and its activities are concerned:

‘It is envisaged that the activities of the trust shall lead disadvantage to South Africans to a sustainable livelihood, or contribute to economic growth and less inequality within the South African society, thus alleviating poverty and achieving a high development potential.’[12]

[11] Clause 7 deals with the trustees’ powers which include the powers to

‘appoint a programme manager to manage and supervise the implementation of the objectives of the trust on a day-to-day basis and to remunerate such programme manager’ and ‘appoint further personnel and or agents for a specific purpose on behalf of the trust and to remunerate such persons at the usual professional all business rates; and ‘to take action in a court of law for the recovery of any amounts due to the trust or to compel the fulfilment of obligations in its favour and to defend any proceedings that may be instituted against the trust’.[13]

[12] On the evidence, that Mr. Duncan was employed by SSACI as stated above. The appointment as CEO was confirmed by the BOT. This is evident from his letter of appointment.[14] It also transpires from the job description of the CEO, that he reported directly to the BOT.[15]

[13] The PDA makes provision for protected discloures being made in the workplace and for protection to the one making such disclosures. The respondents’ contention that no employment contract existed between Mr. Duncan and the Ambassador and Mr. Setiloane arises for the first time in their heads of argument. For expedience, I deal with that contention briefly in order to put it to bed.

[14] Section 1 of the PDA defines an ‘employee’ and ‘employer’ as follows:

‘ “employee” means –

(a) any person, excluding an independent contractor, who works or worked for another person or for the State, and who receives or received, or is entitled to receive, any remuneration; and

(b) any other person who in any manner assists or assisted in carrying on or conducting or conducted the business of an employer.

“employer” means any person –

(a) who employs or provides work for any other person and who remunerates or expressly or tacitly undertakes to remunerate that other person; or

(b) who permits any other person in any manner to assist in the carrying on or conducting of his, her or its business, including any person acting on behalf of or on the authority of such employer’.

[15] On the facts, it is indicated that Mr Duncan was employed by SSACI. In accordance with the Deed of Trust, the trustees and on behalf of SSACI, appoint employees to assist SSACI with the achievement of its objective and activities. In Land and Agricultural Bank of South Africa v Parker and others,[16] the Supreme Court of Appeal stated that a trust deed is the trust’s constitutive charter and the trust cannot be bound outside its provisions.

[16] In the circumstances, SSACI in my view, is an employer and acts as such through its appointed trustees. Therefore, SSACI fits the definition of an employer as defined in the PDA. I am therefore not persuaded that SSACI is not an employer, as its role as an employer is provided for in its Deed of Trust, as set out above. To emphasise this point, the policies of SSACI (approved by the BOT), make provision for the roles and responsibilities of each member of SSACI including the delegations of authority of the BOT, which include setting of the staff’s remuneration and basic conditions of service, initiating legal proceedings, determining the salary scales and dealing with appeal proceedings in disciplinary enquiries.[17]

[17] Further, in the supplementary pre-trial minute, the respondents state as follows:

‘In light of the above, the board decided to action a disciplinary process against the applicant for misconduct and he was subsequently dismissed for that misconduct after the board had found that his unwarranted and malicious accusations against the second and seventh respondents had caused the irretrievable breakdown of the trust relationship between him and the board, and that the continuation of his employment relationship with the first respondent had become untenable and intolerable.’[18]

[18] It is trite that litigants are bound by their pre-trial minute.[19] Therefore, in the light of the afore-going, the respondents’ submission that there is no employment contract between Mr. Duncan and the Ambassador and Mr. Setiloane or the BOT for that matter, is unmeritorios.

[19] 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, but does not, subject to section 9A, include a disclosure –

(i) in respect of which the employee or worker concerned commits a criminal offence by making that disclosure; or

(ii) made by a legal adviser to whom the information concerned was disclosed in the course of obtaining legal advice in accordance with section 5”.

[20] Section 6 (1) of the PDA provides:

‘(1) Any disclosure made in good faith –

(a) and substantially in accordance with any procedure authorised by the employee’s or worker’s employer for reporting or otherwise remedying the impropriety concerned and the employee or worker has been made aware of the procedure as required in terms of subsection (2)(a)(ii); or

(b) to the employer of the employee or worker, where there is no procedure as contemplated in paragraph (a), is a protected disclosure’.

[21] An ‘occupational detriment’ is defined[20] 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;

(h) being subjected to any civil claim for the alleged breach of a duty of confidentiality or a confidentiality agreement arising out of the disclosure of –

(i) a criminal offence; or

(ii) information which shows or tends to show that a substantial contravention of, or failure to comply with the law has occurred, is occurring or is likely to occur;

(j) being threatened with any of the actions referred to in paragraphs (a) to (h) above; or

(i) being otherwise adversely affected in respect of his or her employment, profession or office, including employment opportunities, work security and the retention or acquisition of contracts to perform work or render services’.

[22] Section 3 of the PDA provides that

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

[23] Section 187(1)(h) of the LRA provides that a dismissal on account of a protected disclosure in terms of the PDA is automatically unfair.[21]

[24] In Baxter v Minister of Justice and Correctional Service and others[22] (Baxter) the Labour Appeal Court (LAC) was instructive as setting out the test that must be satisfied in order for an applicant to succeed on 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 succed in his claim for automatically unfair dismissal, the appellant was therefore required at trial to establish the following: i) he 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.’

[25] In applying the aforesaid test, one should not lose sight of the provisions of section 2(1)(c) of the PDA which states that one of the objects of the PDA (apart from making provision for the protection of an employee who makes a protected discloure and providing remedies in that regard), is to “provide for procedures in terms of which an employee or worker can, in a responsible manner, disclose information regarding improprieties[23] by his or her employer’. (Emphasis added).

[26] And at paragraph [84], the LAC in Baxter stated the following:

‘It is next necessary to determine the dominant reason for the dismissal. Section 3 of the PDA provides that no employee may be subjected to any occupational detriment (dismissed) by his of employer on account, or party on account, of having made a protected disclosure. As explained earlier, where dismissal is in contravention of the PDA it will be automatically unfair in terms of section 187(1)(h) of the LRA. If there are different reasons for dismissing an employee, the court must embark on a causation enquiry. The decisive inquiry therefore is whether the reason for the appellant’s dismissal is one proscribed by section 187(1)(h) of the LRA or the misconduct for which he was charged. The court must determine whether the dismissal would have occurred if the appellant had not made the protected disclosure and, if not, whether such disclosure was the main, dominant, proximate or most likely cause of the dismissal.’[24]

[27] From the aforegoing, it transpires that when an applicant demonstrates that s/he made a protected disclosure as defined in the PDA to his/her employer of an impropriety by his/her employer, s/he must prove that “but for” the disclosure, s/he would not have been dismissed.

[28] The LAC in Baxter pointed out that an ulterior motive does not mean that the employee acted in bad faith; bad faith dennotes a dishonest intention or a corrupt motive. In addition, personal animosity on the part of an employee is not sufficient to conclude that he acted in bad faith.

[29] Therefore, it is necessary for the Court to evaluate whether the applicant was deceitful and manufactured the information. It bears mentioning that it is trite that the applicant does not have to prove the veracity of information – s/he need only demonstrate that s/he reasonably believed the information s/he disclosed was substantially true.[25] The purport of the PDA is that once a disclosure is made, it is for that employer (or the body to whom the disclosure was made as the case may be), to investigate the issue disclosed.

Pleadings, pre-trial and supplementary pre-trial minute

[30] Technicalities at the instance of the respondents permeate these proceedings. These are evident from the several jurisdictional points raised, several not pursued and further jurisdictional points raised in the respondents’ heads of argument for the first time.

[31] The statement of response contains a number of jurisdictional issues.[26] Firstly, that the Ambassador enjoys diplomatic immunuty and cannot be cited as a party to these proceedings without the consent of the Swiss Confederation, which concent is not granted; secondly, Mr. Duncan repudiated his contract, thus he was not dismissed; alternatively, if it is found that he was dismissed, then this Court lacks jurisdiction as the dispute is to be arbitrated by the CCMA; thirdly, Mr. Duncan did not make a protected disclosure as contemplated by the PDA, thus his dismissal is not an automatically unfair dismissal in terms of section 187(1)(h) of the LRA; fourthly, the CCMA did not conciliate the dispute that was referred to it. In addition, the pre-trial minute records that the “Respondent contests the jurisdiction of this court”.[27]

[32] In the Court order per Cele J, the jurisdictional issues as stated in paragraph 5 of the statement of response were referred to the motion court for a hearing.[28] In a subsequent judgment by Mangena AJ, this Court dealt with one of the jurisdictional issues, namely the respondents’ contestation that the dispute had not been conciliated at the CCMA. Mangena AJ mentioned in paragraph [5] of his judgment, that “other jurisdictional issues” would be deferred to the trial Court for determination. No jurisdictional issues were raised at the commencement of the trial.

[33] The parties filed a pre-trial minute as well as a supplementary pre-trial minute. The latter in essence, deals with the provisions of item 10.4.2.3 of the Practice Manual[29] as this was not dealt with in the initial pre-trial minute.

[34] The pre-trial minute is inadequate in the following respects:

34.1 The parties were lackadaisical in not narrowing the issues that are common cause. Only one issue is recorded as being common cause, and that is the tenure of Mr. Duncan totalling 17 and half years. Having had the benefit of the evidence, it is apparent that a number of issues of common cause arise. It is not for this Court to delineate the common cause issues. I make this remark to emphasise the inadequacy of the pre-trial minute.

34.2 The pre-trial minute is silent as to the issue that this Court is to determine. The applicant statement of case raises four claims. They are:

34.2.1 Firstly, that Mr. Duncan’s dismissal is procedurally unfair;[30]

34.2.2 Secondly, that Mr. Duncan’s dismissal is substantively unfair;[31]

34.2.3 Thirdly, that Mr. Duncan’s dismissal is automatically unfair on account of him having made a protected disclosure in terms of the PDA;[32] and

34.2.4 Fourthly, breach of contract on the basis that the respondents failed to comply with the terms of the employment contract in relation to the “notice provision”.[33]

34.3 In sheer obstinance, the respondents did not agree to exchanging discovery affidavits, but subsequently requested the disclosure of information in the form of a request for further particulars, which was provided. Mr. Duncan takes issue with this and requests this Court to make a costs finding against the respondents for their conduct in this regard.

[35] The relief sought by Mr. Duncan is 24 months’ compensation, interest on that amount and costs.[34] No other relief is sought by way of a declarator regarding the unfairness of the dismissal. This would be a crucial aspect of the relief sought given the various claims of Mr. Duncan. The Court is left to conclude, given the relief sought by Mr Duncan and given the heads of argument filed on his behalf, that the main (if not sole) issue that is to be determined is that his dismissal is automatically unfair as contemplated in section 187 (1)(h) of the LRA.

[36] The respondents contend that Mr Duncan has not seriously pursued his claims in respect of his dismissal being both procedurally and substantively unfair and his claim regarding breach of contract, and the only issue pursued by him vigourously is his claim that his dismissal is automatically unfair. The respondents submit in their heads of argument (a point not raised at the start of the trial nor before Mangena AJ, it seems), that this Court has no jurisdiction to adjudicate Mr. Duncan’s claims regarding his dismissal being both procedurally and substantively unfair and breach of contract.[35] In this regard, the respondents rely on Mkokeli v Bloomberg LP (Pty) Ltd[36] (Bloomberg).

[37] In Bloomberg, this Court, per Moshoana J, found that the applicant had not made out a case for an automatically unfair dismissal. The applicant pleaded in the alternative, that his dismissal was substantively and procedurally unfair. Moshoana J dismissed this alternative claim on the basis that the applicant had not set out a factual basis for this claim in his referral to the CCMA and on that basis, this Court lacked jurisdiction to adjudicate that claim. Moshoana J stated that there are circumstances where in terms of section 158(2) of the LRA, this Court would in its discretion, determine a dispute of an unfair dismissal where it would be expedient to do so, however, the Court must in such circumstances, be clothed with jurisdiction. Moshoana J found that the applicant in his referral form had, as in casu, recorded in his referral to conciliation, that the reasons for his dismissal were unknown and in those circumstances, section 191(5)(a)(iii) of the LRA provides that such dispute must be arbitrated. Notably absent from the statement of response, is a jurisdictional point that this Court lacks jurisdiction as contemplated in section 191(5)(a)(iii) of the LRA.

[38] Bloomberg did not deal with a claim of breach of contract. Having said that, Mr. Duncan has not set out in his statement of claim with any particularity, on what basis he claims breach of contract. He also does not seek any remedy in relation to this claim. It is so, that he has not seriously pursued this claim at the trial and that he has vigourously pursued a claim for an automatically unfair dismissal. This is evident from submissions in the heads of argument filed on his behalf, as I have already mentioned.

[39] The evidence of Mr. Duncan before this Court is that the respondents did not hold a disciplinary enquiry prior to his dismissal and did not prove the allegations of misconduct against him. On a reading of Mr Duncan’s referral to the CCMA, as well as the certificate of outcome to the CCMA, he mentions that the reason for his dismissal is unknown. As in Bloomberg, the certificate of outcome[37] in respect of the dispute referred by Mr. Duncan to conciliation records “Reason for dismissal not known” and the matter is rightly, referred to arbitartion, but for some reason, Mr. Duncan elected to refer this matter to this Court for adjudication. That is water under the bridge, given Mangena AJ’s order on jurisdiction, which stands. As I have said, no further issues of jurisdiction were argued before this trial commenced. Bearing in mind the remarks in Bloomberg that the applicant must set out a factual basis for his dipsute and given the direction taken by the Court that the applicant’s

claim of an automatically unfair dismissal was an afterthought, I take a different and generous view in this matter, as Mr. Duncan

mentions in his referral that he acted in terms of the provisions of the PDA (and other prescripts, such as the Trust Property Contol Act[38] and policies of the respondents).[39] I therefore, find that he set out a basis for his claim of an unfair dismissal and claim for an automatically unfair dismissal. Should he therefore, not discharge the onus on him to prove an automatically unfair dismsisal, this Court has jurisdiction and has the discretion to proceed with the matter in terms of section 158(2) of the LRA.

[40] Therefore, in view of the aforesaid inadequacies in pleadings and the pre-trial minute and in view of the evidence, the issue that this Court is to determine is crisp and that is this: whether the reason for Mr. Duncan’s dismissal is pemised on him making a protected disclosure as defined in the PDA. The onus is therefore on Mr Duncan to prove to this Court that he made a protected disclosure as defined in the PDA and that his disclosure is the main, dominant or proximate reason for his dismissal. If he fails to discharge this onus, then, on the basis of the LAC decision in Baxter v Minister of Justice and Others,[40] with reference to its decision in SA Chemical Workers Union and Others v Afrox Ltd,[41] to which this Court is bound, this Court is to exercise its discretion, if it be expedient to do so, to proceed to determine the substantive and procedural fariness of his dismissal.

Evidence and evaluation

Did Mr. Duncan make a disclosure to his employer?

[41] The evidence of Mr. Duncan, which is not disputed, is that in his email of 12 July 2018, he disclosed information to Mr. Isaacs that he had learned from the community in which SSACI operates, that the Ambassador and Mr. Setiloane were fundraising for a skills

development project outside of SSACI, managed by an external consultant (Mr. Staub), which project was based on the HSP. Mr. Duncan’s view was that the conduct of the Ambassador and Mr. Setiloane was a conflict of interest in relation to their duties as trustees.

[42] The email of 12 July 2018 states on more than one occasion, that he is bringing this matter to Mr. Isaac’s attention. It is not in dispute that in July 2018, during a telephone call, Mr, Isaac’s undertook to raise the issue with the Ambassador and Mr. Setiloane.

[43] In a follow-up email of 19 September 2018,[42] Mr. Duncan enquired from Mr. Isaacs when he intended to inform the BOT about the project of the Ambasador and Mr. Setiloane. He reiterated that the issue is constitutes a conflict of interest and it was becoming public knowedge.

[44] In a further email of 10 October 2018, Mr. Duncan proposed to Mr. Isaacs that the simplest way to raise the issue of the “Ambassador’s

project”, with the BOT, was to include his email of 12 July 2018 in the Board Pack and the BOT to deal with the matter as they see fit. In response, on 10 October 2018,[43] Mr. Isaac’s enquired from Mr. Duncan what his advise would be in terms of guiding the BOT meeting and what Mr. Duncan’s expectations would be if the Ambassador indicated that SSACI could take over the project. In reply, Mr. Duncan stated that inter-alia he would expect the Ambassador and Mr. Setiloane to resign as they cannot be trusted and that SSACI should not take up her offer to take over the project, which he in any event doubted she would offer.[44]

[45] Mr. Duncan’s evidence was that Mr. Isaac’s did not object to his email of 12 July 2018 being included in the Board Pack . This is not disputed by Mr. Isaacs. Mr. Duncan’s further evidence was that the Board Pack is distributed to the BOT in advance, before each Board meeting. This was also not disputed.

[46] In view of the aforegoing, I find that Mr. Duncan disclosed to Mr. Isaacs and to the BOT, that according to the infomration that came to his attention in SSACI’s environment, that the Ambassador and Mr. Setiloane were fundraising for a project in competition with SSACI and were marketing it as their own project, with an external consultant.

[47] At a later stage following the initial BOT meeting on 17 October 2018 (more on this later), Mr. Duncan made available to the BOT, his aide-memoire and the concept document of the Hospitality Programme as drafted by the external consultant, Mr. Staub. Mr Duncan stated in his covering email enclosing these documents, that Mr. Staub is prepared to inform the BOT of his experience. Mr. Duncan provided Mr. Staub’s contact details in this email.[45]

[48] In view of the aforegoing, I find that Mr. Duncan disclosed information to Mr. Isaacs and to the BOT. This is not disputed.

Did the information disclosed by Mr. Duncan constitute a protected disclosure as defined in the PDA?

[49] I have stated above that SSACI and the BOT is the employer of Mr. Duncan. In the circumstances, Mr. Duncan made a disclosure to his employer.

[50] Mr. Duncan’s evidence is that he believed, on legal advice, that there was a conflict of interest. In this regard, he believed that the Ambassador and Mr. Setiloane were not compyling with their duties as trustees.

[51] Mr. Duncan’s evidence was that he was chastised by the Ambassador at a BOT meeting for not ensuring that SSACI was increasing its funds (in reference to SSACI’s involvement in the Youth Employment Service [YES] project). According to Mr. Duncan, the Ambassador’s conduct in excluding SSACI in the Hospitality Programme was contrary to her remarks, as SSACI would not benefit from the funds due to another competing organization benefitting from the private funding. (Mr. Setiloane’s evidence was it is possible for non-profit organizations to compete for funding).

[52] It was put to Mr. Duncan in cross –examination that at the time the Ambassador presented the Hospitality Programme to the BOT, SSACI had no similar competing initiative, thus his belief pertaining to competition was unfounded. Mr. Duncan was consistent that according to the information that came to his attention, the conduct of the Ambassador and Mr. Setiloane constituted a conflict of interest, as according to the information, the project was marketed as their own project to the exclusion of SSACI, although based on SSACI’s past project.

[53] It is so that the Ambassador informed the BOT a year prior of the Hospitality Programme, however, the minutes of the meeting of 23 February 2017, Mr. Duncan’s email to the Ambassador of 14 March 2017 in which email he attached his aide-memoire, as well as the following BOT meeting of 12 May 2017, support the evidence of Mr. Duncan that it was intended that SSACI would have a role in the Hospitality Programme. The evidence before this Court is that Mr. Duncan did not follow up with the Ambassador about SSACI’s role and neither did the BOT approve that SSACI would be involved in the Hospitality Programme. This does not take away from what is recorded in the BOT minutes, that SSACI’s role would be looked into. The information that came to Mr. Duncan subsequently, (from Messrs. Schmocker and Staub), was that SSACI was excluded and the Ambassador and Mr. Setiloane were concealing this information.

[54] Mr. Duncan intended to call additional two witnesses (other than Mr. Scmocker) to prove that SSACI was excluded from the Hospitality Programme. They are Messrs. Kuhn and Staub. An application was granted to have them lead evidence by way of video conferencing. The platform was arranged, however, Counsel for Mr. Duncan advised this Court that Mr. Staub could not be reached and technical difficulties ensued in connection with Mr. Kuhn, after which, a decision was made not to lead his evidence. The respondents contend that this Court should draw a negative inference against the applicant for his failure to lead this evidence. While it is trite that a negative inference may be drawn where an available witness is not called to testify, I am of the view that Mr. Duncan made the necessary effort to have his witnesses available. Their unavailablity cannot be laid at his door. This is not a litigant who simply did not call the witnesses he intended to call. Efforts were made to secure their attendance.

[55] The evidence before this Court is that Mr. Staub drafted the concept document.[46] (I emphasize that in the pre-trial minute, the parties agree that the documents are what they purport to be). In terms of this concept

document, Mr. Staub is listed as the programme manager and the initiative is recorded as being that of the Swiss Embassy and based

on SSACI’s past project. This is not in dispute.

[56] In view of the afore-going, I find that the information Mr. Duncan disclosed, falls within the definition of ‘disclosure’ as defined in section 1 of the PDA, in particluar, subsections (b),(c) and (g).

[57] I reiterate that in terms of the PDA, there was no requirement for Mr. Duncan to prove the accuracy of the information. All that is required is that he reasonably believes that the information is substantially true, which I find, Mr. Duncan demonstrated. The information brought to his attention by Mr. Staub as well as Mr. Schmocker was that the Ambassador and Mr. Setiloane were marketing the Hospilality Progamme as their own and to the exclusion of SSACI, and he had made provided he Ambassador with his aide-memoir containing the past work undertaken by SSACI to enable the Ambassador to conceptualize her initiative. He brought this to Mr. Isaacs’ attention, as well as to the BOT. He subsequently made the concept document and contact details of Mr. Staub available to the BOT.

[58] Mr.Schmocker’s evidence was that he was surprised to hear about the Ambassadors initiative to the exclusion of SSACI, as he was aware of the work that SSACI did and he too, was of the view that the conduct of the Ambassador was questionable. His evidence was that Mr. Staub approached his foundation, the Julius Baer Foundation to fund the Hopsitality Programme. As he had previously had dealings with SSACI, he questioned SSACI’s non- involvement in the project. Mr. Schmocker found this odd and contacted Mr. Duncan to inform him about this. He subsequently met the Ambassador and asked her why she was doing a project that fell in SSACI’s domain. During cross-examination, Mr. Schmocker conceded that he was not aware that the Ambassador had tabled this initiative at the BOT meeting in February 2017 and he stated that had he known this, his impression in hindsight, would have been different, that is, that SSACI was aware of the project and therefore a conflict of interest could not arise.

[59] The relevance of the evidence of Mr. Schmocker, is that the information was in the environment that SSACI operated in, to its exclusion. This demonstrates that the information was not manufactured by Mr. Duncan. This lends credibility to Mr. Duncan’s version that he reasonably believed that the information was substantially true. Mr. Duncan provided the BOT with Mr. Staub’s contact details. This is indicative of the absence of deceit on his part regarding the information that came to his attention. Notably, he left it to the Board of Directors to investigate.

[60] Mr. Isaacs confirmed in cross examination that although Mr. Staub’s contact details were provided to him by Mr. Duncan in October 2018, he did not contact Mr. Staub and did not investigate the matter. In my view, Mr. Isaacs having conceded that Mr. Duncan’s disclosure was in good faith and yet failing to conduct the investigation as was expected of him and proceeding to sign the letters on behalf of the BOT regarding the disciplinary action against Mr. Duncan (i.e. calling upon him to make represenations as to why his contract should not be terminated on account of alleged misconduct and thereafter, proceeding to be the signatory of Mr. Duncan’s dismissal letter), puts Mr. Isaacs in the position of “the judge, jury and executioner”. On this basis alone, it is apparent that in the absence of a disciplinary enquiry in terms of the disciplinary code of SSACI, that the dismissal of Mr. Duncan is procedurally and substantively unfair.

[61] On the issue of bona fides, Mr. Duncan’s evidence was that there was animosity between him and the ambassador. He mentioned in his disclosure, that he was hesitant to bring the issue to Mr. Isaacs’ attention because of this animosity. Mr. Isaacs confirmed that there was animosity in the work relationship between Mr. Duncan and the Ambassador.

[62] I do not find that because there was animosity, there was a lack of good faith.[47] I reiterate that Mr. Isaacs conceded that the disclosure was made in good faith.

[63] In the circumstances, the disclosure by Mr. Duncan is protected as contemplated in sections 6(1) and 9 of the PDA.

Did Mr. Duncan suffer an occupational detriment?

[64] Mr. Duncan after having made a protected disclosure, was treated in the most abhorrent manner, which is against the tenants of the PDA. On 17 October 2018, and on the undisputed evidence, he suffered a tirade at the instance of the Ambassador, before the BOT, and was obviously, not protected. This is indisputed. Mr. Isaacs’ evidence was that Mr. Duncan was given an opportunity to speak in the meeting of 17 October 2018. Mr. Duncan disputes this.

[65] To the extent that there are mutually destructive versions before this Court, the Supreme Court of Appeal in Stellenbosch Farmers Winery Group Limited and another v Martell et Cie and others[48] gives guidance as to how to deal with mutually destructive versions.

[66] What is common cause, is that Mr. Duncan was asked to leave this meeting and after a considerable amout of time had passed with him sitting outside the meeting, was informed by Mr. Isaacs that the meeting was adjourned to 29 October 2018. Mr. Duncan enquired from Mr. Isaacs if this was a disciplinary hearing and Mr. Isaacs answered in the negative. When the meeting resumed on 29 October 2018 in the absence of the Ambassador and Mr. Setiloane, Mr. Duncan was asked to substantiate his allegations. Thereafer, on 30 October 2018, he sent an email referred to above, attaching documents in substantiation of his allegations as well as the contact details of Mr. Staub.

[67] Subsequently, in a letter dated 7 November 2018, it is mentioned that Mr. Duncan was given an opportunity on 29 October 2018 to subtantiate his allegations and he could not. Mr. Duncan was tasked to make representations as to why his contract of employment should not be terminated on account of misconduct, which representations he made. Nonetheless, he was dismissed. Much was made about his notice period. On the facts, he was dismissed on 31 December 2018.

[68] Mr. Duncan was a reliable, consistent and credible witness. Insofar as Mr. Isaacs is concerned, he evaded questions during regarding his impartiality. The disclosure having being made to him as the chairperson of the BOT, he failed to conduct or faciliate the

investigation of the information that came to his attention. He became part of a decision to level misconduct allegations against Mr. Duncan with a foregone conclusion that he was gulity of misconduct and ultimately penned Mr. Duncan’s letter of dismissal. He ultimately made a concession that is damaging to the respondent’s case, and that is, that the disclosure by Mr. Duncan was bona fide.

[69] In the premises, I find the version of Mr. Duncan more probable.

[70] Mr. Setiloane’s evidence was that the nature of the accusations against him were unfounded and had the effect of tarnishing his integrity as a trustee as he sat on many boards. His evidence was that there was nothing amiss about the Ambassador fundraising for Swiss Embassy projects and that all he was doing was assisting his friend (the Ambassador) with fundraising. Although the respondents

contend that Mr. Setiloane was not yet appointed a trustee at the meeting of 23 February 2017, he was present at the next meeting on 12 May 2017[49] and was at that stage appraised of the minute of the previous meeting. In any event, Mr. Setiloane did not deny “helping his friend with fundraising”.

[71] Mr. Setiloane’s evidence was that he intended to resign at the meeting of 17 October 2018, but did not. In my view, if all he did was “assist his friend with fundraising”, there was no reason why he would go to such lengths as want to resign, without affording the BOT the opportunity to conduct an investigation, with could exonerate him on his version.

[72] In view of the afore-going, Mr. Duncan in my view, suffered an occupational detriment as he faced disciplinary action on account or partly on account of having made a protected disclosure. In my view, the occupational detriment he suffered went further than being subjected to disciplianry action - he was harassed and intimidated in the meeting of 17 October 2018 by enduring a tirade by the Ambassador and further, by being called upon to substantiate the information he disclosed to the BOT, whereas, having made the disclosure, it was for the BOT to investigate the information. He was also admonished for having included his e-mail of 12 July 2018 in the board pack, when at no stage did Mr. Isaacs tell him not to do so when Mr. Duncan had suggested that including the email in the board pack was the simplest manner in which to raise the issue with the BOT.

Was the protected disclosure the main, dominant or proximate reason for Mr. Duncan’s dismissal?

[73] The respondent contends that Mr Duncan was dismissed on account of misconduct.

[74] In the letter of 7 November 2018,[50] it was indicated by the BOT to Mr Duncan that in his email of 12 July 2018 he made several accusations of improper conduct against the Ambassador and Mr. Setiloane, as well as in his emails of 19 September, 10, 12 and 30 October 2018. The letter goes on to state that the accusations are very serious and unsubstantiated, that the BOT has lost trust and confidence in him and is considering terminating his contract of employment. He is then requested to make written representations after which the board will take a final decision.

[75] In Mr Duncan’s representations,[51] he says that it was his obligation in terms of the Trust Property Control Act and the PDA to report the information that he had received with the expectation that the BOT would conduct an investigation. He emphasised that his actions had been entirely proper and consistent with his legal duty and his loyalty to SSACI.

[76] In my view, the misconduct charges emanate from the protected disclosure. Mr. Isaacs’ evidence was to this effect.[52] In the premises, I find that the protected disclosure was the dominant reason for Mr. Duncan’s dismissal.

[77] I accordingly find that Mr. Duncan has discharged the onus on him and he has proved that he made a protected discloure and he was dismissed on account of, or partly on accout of having made the protected disclosure.

[78] Reinstatement is the primary remedy in unfair dismissals. Mr. Duncan reached the normal retirement age of 65 years in May 2022. Reinstatement is not feasible.

Costs

[79] The applicant contends that a costs order should be made against the respondents for the manner in which they conducted themselves in these proceedings.[53] The respondents also seek that a costs order be made as against the applicant.

[80] It is trite that in labour matters the rule that the costs follow the result does not apply, unless there are circumstances justifying a costs order.[54]

[81] Section 162 of the LRA provides that this Court may make an order for the payment of costs according to the requirements of law and fairness. I have considered the arguments for costs advanced by both parties. I am of the view, given my remarks above on the pleadings, pre-trial minutes and contentions advanced in the parties’ respective heads of argument, that this trial was not conducted by both parties, in a manner that could have crystalised and delineated the issues so as to avoid a protracted trial. In the circumstances, I see no reason why each party should not pay their own costs.

[82] In the circumstances, the following order is made:

Order

1. The dismissal of the applicant is automatically unfair.

2. The respondent is to pay the applicant the equivalent of 24 months’ compensation calculated at the applicant’s rate of remuneration as at the date of his dismissal.

3. Each party is to pay its own costs.

M. T. M. Phehane

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv. T. Govender Instructed by: David C Feldman Attorneys For the Respondent: Adv. S. Khumalo SC Instructed by: Bowman Gilfillan Inc.

[1] The pleadings bundle is marked as “A”, the pre-trial minute bundle is marked as “B” and the trial bundle of documents as “C”. All references to page numbers have as a prefix, the alphabetical letter of the bundle, e.g. C64.

[2] Act 66 of 1995 as amended. Section 187(1)(h) of the LRA reads as follows: ‘187 Automatically unfair dismissals (i) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, the reason for the dismissal is – (h) a contravention of the Protected Disclosures Act, 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act’.

[2] Act 66 of 1995 as amended. Section 187(1)(h) of the LRA reads as follows:

‘187 Automatically unfair dismissals

(i) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, the reason for the dismissal is –

(h) a contravention of the Protected Disclosures Act, 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act’.

[3] Act 57 of 1988. The Deed of Trust of SSACI appears at C4 to 20. The initial objectives of the Trust in summary, was to identify, finance and monitor

projects to enhance educational opportunities for disadvantaged South African youth in order to enable them to obtain employment. In addition, to establish a special fund in South Africa which would receive donations devoted to defraying any expenditure incurred in achieving the objectives of the Trust. In order to secure tax exemption as contemplated in Section 18A of the Income Tax Act, Act 58 of 1962 (as amended), in July 2002, the Board of Trustees amended the objective of the Trust to read that the sole objective of the fund shall be to provide funds for public benefit organisations which have been approved in terms of Section 18A of the Income Tax Act. A further amendment was effected in relation to “special restrictions”, which in essence, states that the Trust is to use its funds solely for its object or to invest its funds with registered financial institutions or in securities listed on a licensed stock exchange. [See: C24]. The activities of the Trust are to alleviate poverty and to contribute to economic growth in the South African Society by leading disadvantaged South Africans to a sustainable livelihood. [See: clause 3.2 of the Deed of Trust].

[4] C64.

[5] This is the remedy in respect of maximum compensation for an automatically unfair dismissal in terms of section 194(3) of the

Labour Relations Act, Act 66 of 1995, as amended (LRA).

[6] C64.

[7] Act 26 of 2000.

[8] See: Respondents’ heads of argument, paras 61 to 68 and 71 and the authorities cited therein.

[9] Respondents’ heads of argument, para 83 to 92 and 124 and 125 and the authorities cited therein.

[10] This is in reference to sections1(c) and (g) of the definition of ‘disclosure’ in the PDA. See paragraph 59 of the respondents’ heads of argument.

[11] Respondent’s heads of argument, paras 132 to 148.

[12] Clause 3.2 of the Deed of Trust, C8. See fn 3 in relation to the objective of SSACI.

[13] Clauses 7.3, 7.5 and 7.6 of the Deed of Trust, C12.

[14] B1.

[15] C3.

[16] 2005 (2) SA 77 (SCA) at para [10].

[17] See: SSACI’s Manual of Operating Policies and Procedures, in particular, C29 to 30 and C39.

[18] Para 7.6, B19.

[19] South African Breweries (Pty) Ltd v Louw [2018] 1 BLLR 26 (LAC).

[20] Section 1 of the PDA.

[21] See fn 2.

[22] [2020] 10 BLLR 968 (LAC) at para [64].

[23] Section 1 of the PDA defines an ‘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;”

[24] See also: SA Chemical Workers Union and others v Afrox Ltd (1999) ILJ 1718 (LAC).

[25] Section 9 of the PDA. See also: SA Municipal Workers Union National Fund v Arbuthnot (2014) 35 ILJ 2434 (LAC) at para [15] where the 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’.

[26] Statement of response, para 5, A94 to 95.

[27] Clause 4.1 of the pre-trial minute, B2.

[28] The order by Cele, J appears at A110 to 111.

[29] Effective 2 April 2013.

[30] Statement of claim, para 26, A10.

[31] Ibid, para 27, A10 to 11.

[32] Ibid, paras 28 to 32, A11.

[33] Ibid, para 33, A11.

[34] Ibid, paras 34 and 35, A11 to 12.

[35] Respondents’ heads of argument, paras 6 to 8.

[36] [2021] 6 BLLR 611 (LC).

[37] C189.

[38] Act 57 of 1988.

[39] C152.

[40] [2020] 10 BLLR 968 (LAC).

[41] (1999) ILJ 1718 (LAC).

[42] C67.

[43] C71.

[44] C95.

[45] The email appears at C96. The documents attached to the email appear at C97 to 125.

[46] C 100 to 125.

[47] Baxter, supra.

[48] 2003 (1) SA 11 (SCA).

[49] C52.

[50] C126 to 130.

[51] C132 to 135.

[52] See: applicant’s heads of argument, paras 30.1, 30.2, 30.13, 30.15.

[53] Applicant’s heads of argument, paras 44 to 48.

[54] Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and others (2021) 42 ILJ 2371 (CC).