NUMSA obo Mbali v Road Accident Fund and Another (J848/24) [2024] ZALCJHB 541 (30 August 2024)

FLYNOTES: LABOUR – Disciplinary hearing – Protected disclosure – Applicant argued that disclosures revealed potential criminal conduct, non-compliance with legal obligations and a miscarriage of justice – Clear link between protected disclosures regarding emails and disciplinary charges existed – No substantiation for claim that disclosures were aimed at discrediting witness – Prima facie case established – Internal disciplinary hearing interdicted – Protected Disclosures Act 26 of 2000.

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case No J848/24

In the matter between:

NUMSA obo S. MBALI

Applicant

and

ROAD ACCIDENT FUND

First Respondent

VILAKAZI BUTHELEZI ATTORNEYS N.O Second Respondent

Heard: 23 August 2024

Delivered: 30 August 2024

This judgment was handed down electronically by emailing a copy to the parties. The 30th of August 2024 is deemed to be the date of delivery of this judgment.

JUDGMENT

BALOYI, AJ

Introduction

[1] This matter concerns a disciplinary hearing that the first respondent has instituted against the applicant on charges of misconduct. The applicant is essentially seeking an order on an urgent basis that the disciplinary hearing instituted by the first respondent against him be interdicted to give way to an inquiry by the arbitrator in terms of section 188A(11) of the Labour Relations Act. The first respondent opposes the application with urgency at the top of the contest.

Background to the dispute

[2] The applicant in his capacity as a shop steward of the trade union, NUMSA, represented a number of his fellow employees who were suspended, charged, and in some instances dismissed. These employees faced various acts of misconduct for violating the Rehabilitation Policy relating to the transfer, transportation and admission of patients in furtherance of the first respondent’s post settlement mandate.

[3] In the said disciplinary hearings, the first respondent relied on the evidence of Ms Rebecca Moloto who was the Team Leader in the first respondent’s Post Settlement Department. The employees concerned were her subordinates. Their defences for deviating from the Rehabilitation Policy mainly rested on the fact that they were carrying out instructions from Ms Moloto. Most of such instructions were verbal and Ms Moloto has throughout the disciplinary hearings denied issuing such instructions.

[4] The source of dispute in this matter is the set of email communications between Ms Moloto and one Ms Ellen Bambo who was also facing disciplinary charges. It is not in dispute that the content of the emails was reflective of a communication of the instructions in question. The applicant first produced the emails on 31 January 2024 during Ms Bambo’s hearing to demonstrate that Ms Moloto acted unethically as she committed the very misconduct that she testified about against her fellow employees. The hearing was adjourned to the next day at the request of the first respondent’s representative, Mr Thapelo Maluleka, to enable the first respondent to verify the authenticity of the emails. When the hearing reconvened on 1 February 2024, Mr Maluleka informed the applicant that the emails were according to Ms Moloto fabricated. As a result, the first respondent required more time to verify the authenticity of the emails. The hearing was once again adjourned. The applicant informed Mr Maluleka that he would make protected disclosures on the issue. This is denied by the first respondent in the answering affidavit. It bears mention that the deponent of the answering affidavit, Ms Mpho Prudence Manyasha was not present at the hearings in question and no confirmatory affidavits were filed on behalf of the first respondent.

[5] On 14 February 2024, the applicant addressed a letter to the Chief Executive Officer of the first respondent, Forensics Manager, ER Senior Manager, Employee Relations Manager (Mr Maluleka) and copied his fellow unionists reporting Ms Moloto’s unethical behaviour based on the issues that arose out the emails. The letter was crafted as follows:

'Date: 2024/02/14

Att: RAF Chief Executive Officer:

Mr Collins Letsoalo

Forensic Manager: Mr Serge Mohlala

ER Acting Senior Manager: Ms Nonhlanhla Dludla

Employee’s Relations Specialist: Mr Thapelo Maluleke

CC: NUMSA Menlyn Rep:

Mr Josias Maapola

NUMSA COASTAL FTSS:

Mr Thobile Booi

SUBJECT: ALLEGED UNTHICAL CONDUCT BY MS REBECCA MOLOTO (sic)

Dear sirs and ma’am,

I am writing to bring to your attention a matter of ethical concern that I believe requires immediate attention. I am writing the letter in my capacity as an employee of the Road Accident Fund and a Fulltime Shop Steward of NUMSA, responsible for representing employees in Disciplinary Hearings and related disputes.

My letter is informed by my obligations as set out in the Recognition Agreement signed by RAF and NUMSA and clause 7.10.1 of the Ethics Policy of the RAF which states that “Employees are required to report alleged Unethical Conduct in accordance with the procedure set out in the Ethics SOP”. Furthermore, clause 5.11.2 of the Ethics SOP sets out the method for reporting alleged misconduct using internal avenues. Below is a brief description of the suspected Unethical Conduct:

I was approached by several employees who were formally charged by the Road Accident Fund for alleged misconduct relating to non-compliance with the Rehabilitation Policy; the Pillar 6 Processes and the Claims Procedure Manual of the RAF. Upon assisting some of the employees,

and while compiling evidence for their defence, I stumbled across information in a form of emails that involve Ms Rebecca Moloto, who is a Team Lead – Post Settlement. Upon perusing the evidence, it became apparent to me and the employees I am representing that there seem to have been a serious Unethical Conduct committed by Ms Moloto in her dealings with Sunshine Hospital admissions and her involvement in the transfers of patients to private hospitals.

In one of the emails in question, Ms Moloto is seen to be communicating with a person call Paul from Sunshine Hospital on email address: (Paul@sunshinehospital.co.za). Ms Moloto requested Paul to admit two patients, namely Tshepo Papo and Johannes Masilela, without an Undertaking Certificate,

Preauthorization letter and the claims had not been registered at the time of the admission. As I was preparing a defence, I verified the claimants’ information on Claims View and I discovered that the claims were indeed not lodged at the time of the admission.

The above is an example of a couple of incidents we picked up while compiling evidence for the employees’ defence.

This conduct raises serious ethical questions and may be in violation of

· The Rehabilitation Policy

· The Pillar 6 Processes

· The Claims Procedure Manual

· The Ethics Policy

· The Ethics SOP

As a member of this organization and as a Union Representative, I feel compelled to report this behaviour to ensure that our values and standards of conduct are upheld. Furthermore, clause 7.10.1 of the Ethics Policy and its SOP compel me to report the conduct since it has come to my attention. I have discussed this matter with Mr Maluleke on 01 February 2024, while we were attending the Disciplinary Hearing of Ms Hexonia Kabelo. Mr. Maluleke had requested a postponement of the Disciplinary Hearing after he informed me that Ms Moloto disputed the emails and alleged that the information (Emails) presented in the hearing were forged by either the representative of Ms Kabelo or the person who provided them. He indicated that he needed time to verify whether Ms Moloto’s allegations are correct. After obtaining instructions from the employee I was representing, I indicated to him that we have no objection to the proposition for a postponement and him having to verify the authenticity of the emails. I indicated to him that I will be lodging a formal report of the alleged Unethical Conduct to the relevant departments and or office.

I have attached supporting evidence that may assist in your investigation of this matter. I am also willing to provide any further information or assistance you may require.

I trust that you will handle this matter with the utmost urgency. Ethical integrity is paramount to our organization’s reputation and success, and it is imperative that appropriate action is taken to address any breaches of conduct.

Thank you for your attention to this matter.

Sincerely,

(signed)

Sive Mbali’

[6] He received no response to the letter. On 28 February 2024, he wrote another letter addressed to the Ethics Manager. He raised the very issues contained in the letter of 1 February 2024 coupled amongst others with issues that arose at the hearing of Ms Hexonia Kabelo that was held on 27 February 2024. Mr Maluleka had during this hearing aggressively addressed and treated him in a manner that made him feel intimidated. Whilst sitting in the very hearing, he received an email that was initially sent to a union official, Mr Robert Seroke, inviting the union to a consultation over his contemplated suspension. According to the said email, the consultation was scheduled for 15h30 on the very day of Ms Kabelo’s hearing. The first respondent did not accept an alternative date of 4 March 2024 that was proposed by the union official because it was practically impossible.

[7] The applicant was ultimately suspended on 1 March 2024. The suspension letter did not form part of either party’s papers. The applicant did not receive a response(s) to his letters of 14 and 28 February 2024. He was served with a notice to attend a disciplinary hearing accompanied by a charge sheet on 1 August 2024 scheduled to sit on 8 August 2024.

[8] The applicant through his attorneys addressed a letter dated 6 August 2024 to the first respondent detailing the underlying factors dating from 31 January 2024 that led to the applicant’s suspension and the disciplinary action. The main focus was on the disclosure of Ms Moloto’s unethical conduct of falsely testifying against her subordinates to conceal her wrongdoings. It was emphasized in the letter that the disciplinary action against the applicant contravened the Protected Disclosures Act in that Ms Moloto’s conduct constituted criminal conduct, she failed to comply with legal obligations, and her false testimony led to or is likely to lead to miscarriage of justice.

[9] Based on the protected disclosures made by the applicant, the first respondent was notified of the need to have the hearing conducted in terms of section 188A(11) before the arbitrator and impressed upon the first respondent to approach the CCMA and to terminate the hearing scheduled for 8 August 2024. The first respondent was given until 12h00 on 7 August 2024 to meet the applicant’s demands.

[10] On the same day, the first respondent’s attorneys sent an email to the applicant’s attorneys with not so many words directing them to serve the purported urgent application directly on them, not the first respondent. None of the issues raised in the applicant’s five-page letter were addressed in the said email.

[11] The applicant filed this application on 8 August 2024 and was set down for hearing on 23 August 2024. Both the merits and urgency were argued as briefly set out hereunder.

Urgency

[12] The first respondent submitted that in the applicant’s own case as pointed out in his attorney’s letter of 6 August 2024, the occupational detriment in the form of suspension occurred on 1 March 2024. The applicant however elected to bring this application some five months after his suspension. Secondly, according to the outcome of the forensic investigations, the applicant downloaded the said email communications from Ms Bambo’s email account on 12 January 2024. He elected to keep quiet about that. He only made purported protected disclosures on 28 February 2024 after seeing the first respondent’s email communication about its intentions to suspend him. The application is thus not urgent and must be struck off the Roll with costs. The investigation started on 31 January 2024, when Mr Maluleka expressed the first respondent’s intentions to verify the authenticity of the emails.

[13] In response, the applicant pointed out that the application is about the interdicting of the disciplinary hearing that was due to sit on 8 August 2024 and the notice of which was served on 1 August 2024. The notice of motion reflects no challenge to the suspension because a right to be heard through section 188A(11) only relates to a disciplinary hearing. The first respondent’s intentions to discipline the applicant were only confirmed on 1 August 2024 and the applicant attempted to get the applicant on board for the section 188A(11) inquiry after the service of notice to attend an internal disciplinary hearing. The applicant acted with necessary haste by communicating the necessity of a hearing in terms of section 188A(11) given the protected disclosures made. This application was filed soon after receiving a negative response from the first respondent’s

attorneys. The applicant relied amongst others on Tsibane v Estate Agency Affairs Board and Others[1] to demonstrate that an approach to this Court is an appropriate remedy in circumstances where the employer refuses to submit to the section 188A(11) inquiry.

[14] Based on what is placed before this Court, it is notable that the applicant is seeking an order to assert his right to be afforded a hearing in terms of section 188A(11) on reasons that he made protected disclosures. When considering the applicant’s two letters that were not responded to, there is no reason to find that the applicant’s claim is not substantiated. The merits of the claim whether its content constitutes protected disclosures cannot be a determining factor for urgency. However, for what appears herein below it is imperative that an applicant should establish a prima facie case about such disclosures being made in good faith.

[15] The Court should at the same time note the sensitivity of issues around the protected disclosures as in some unfortunate instances the genuine whistle blowers do not only suffer one or more of the occupational detriments listed in the Protected Disclosures Act but end up losing their lives in some unexplained circumstances. It cannot be denied that whistle blowing has to a certain extent turned to be a matter of life and death. There is no suggestion of a threat to the applicant’s life in this matter, however, the underlying factors in applications of this nature deserve the Court’s urgent scrutiny. It also deserves to be stressed that section 188A(11) inquiry is not just there for the taking[2]. This simply means that the Court should not hesitate to dismiss or decline hearing applications of this nature on an urgent basis upon detection of elements of abuse of processes or ill intentions aimed at frustrating an internal disciplinary hearing. To guard against abuse of processes by either party, the Court should upon necessary assessment of the material placed before it on case by case basis, perform its function of ensuring that the rule of law is observed. The balancing of the employee and employer’s interests will certainly bring hope to the public that genuine whistle blowing is not a mere exercise in futility by this country's law-abiding citizens. At the same time, an employer who subscribes to a rule of law will see no difficulty with the escalation of the internal disciplinary hearing to a section 188A(11) inquiry based on prima facie case of protected disclosures made by the employee.

[16] The timetable of activities in this matter surely reveals that the applicant acted with necessary haste in launching this application regarding the necessity for the disciplinary hearing to take place in terms of section 188A(11). In terms of section 1 of the Protected Disclosures Act, suspension is recognized as one of the occupational detriments arising from the protected disclosures made by an employee. The applicant did not bring a suspension case in this matter and is not pursuing any relief based on suspension. The first respondent’s argument that the applicant waited for five months after being suspended cannot in this regard be sustained as this application is about a disciplinary hearing and its commencement was only communicated on 1 August 2024.

[17] After having considered the pleaded facts and arguments placed before the Court, I am urged to exercise the discretion which the Court is loaded with. I am in this respect inclined to agree with what the Court said in Motloung v Universal Service and Access of South Africa and Others[3] regarding urgency at paragraphs 7 and 8 that:

‘[7] The Court may at its discretion under Rule 8 of the Rules of this Court, relax or shorten the strict formal rules relating to time provided for service, and treat an application as urgent. In such applications, the applicant is required to first, set forth explicitly in the founding papers, the circumstances which he avers, renders the matter urgent and second, to explicitly advance the reasons why he claims that he could not be afforded substantial redress if he had brought the matter to Court by way of an ordinary non-urgent procedure, instead of this extraordinary urgent procedure.

[8] Whether the applicant will be able to obtain substantial redress in due course is dependent on the facts and particular circumstances of each case. Of equal importance is that urgent relief may be refused in circumstances where the matter has become urgent owing to dilatoriness on the part of the applicant. This is because the primary objective of approaching a Court on an urgent basis, is to prevent harm or prejudice from occurring. Effectively, an applicant cannot undo the harm complained of, by simply seeking urgent relief.’

[18] The applicant filed this application just two days after receiving a negative response to his letter of 6 August 2024. The applicant has at least substantiated the averments that he had on two occasions made protected disclosures to the first respondent. At the time of being served with the charges, the first respondent had not attempted to reply to his reports or at least to inform him that it was investigating and would revert. Without hesitation, the only appropriate finding to arrive at is that a case is made for the hearing of this application on an urgent basis.

The merits

[19] It is the applicant’s contention that disclosures made predate the investigation which commenced on 3 April 2024 and completed on 30 April 2024 as recorded in the forensic investigations report. The disclosures made by the applicant satisfy the provisions of the Protected Disclosures Act and were made in good faith as the applicant had a reason to believe that Ms Moloto’s conduct tends to show possible criminal conduct, failure to comply with legal obligations and miscarriage of justice.

[20] The application is mainly opposed on the basis that the reports made by the applicant on 14 and 28 February 2024 do not constitute protected disclosures. Firstly, the letter of 14 February 2024 is merely a complaint sent to the CEO and copied to other recipients who happen to be the applicant’s fellow unionists amongst others. Regarding the letter of 28 February 2024, the first respondent admits that the applicant followed the correct channel of reporting his purported protected disclosures to the ethics manager. However, it was not made in good faith as it was only done a day after the applicant had learnt about the first respondent’s intention to suspend him. Furthermore, the applicant acted with malice aimed at eliminating Ms Moloto as a witness by tainting her as an unethical person. There is no nexus between the disclosure and the disciplinary action as the applicant is not charged with fabrication of the emails but violation of Information Security Policy framework by allowing Ms Bambo, a suspended employee to access her mailbox through his work computer without a written authority.

[21] The first respondent’s further contention is that the applicant can still proceed with section 188A(11) inquiry without interdicting the internal hearing. The granting of the interdict will cause prejudice to the first respondent as its entitlement to discipline the applicant will fall away should the arbitrator refuse to proceed with the inquiry in circumstances of a ruling that there are no protected disclosures.

Evaluation

[22] It is of high importance to emphasize that the raising of protected disclosures within the scheme of internal disciplinary hearings comes as the employee’s defence. The employee basically suggests that the employer’s decision to institute disciplinary proceedings against him is a way of retaliating against his protected disclosures. In other words, it comes as an attempt to silence him. This, in terms of section 1(a) of the Protected Disclosures Act is referred to as an occupational detriment. Section 188A(11) is essentially designed to allow an inquiry by the arbitrator to take place if an employee in good faith alleges that the holding of an internal disciplinary inquiry violates the Protected Disclosures Act[4].

[23] With the parties not in a position to agree to an inquiry by the arbitrator, the Court is often called upon to intervene and pronounce

whether there is a genuine cause for the disciplinary hearing to proceed in terms of section 188A(11). In doing so, the Court may find itself making premature determinations on such issues as it may later have to deal with a dispute referred to this Court under sections 187(1)(h)[5] or section 145[6] post the finalization of the internal hearing or an inquiry by the arbitrator respectively should the dismissal of an employee occur. If the matter is determined on prima facie basis, there will be no room for any party to claim at a later stage that certain issues in the matter were determined by this Court prior to the holding of a disciplinary hearing.

[24] In my view, when the Court is faced with an application in which its intervention is sought where the referral of the disciplinary hearing to section 188A(11) inquiry is the subject matter, it is important to draw a distinction between the two stages, that is, when the matter is determined prior to the inquiry and post the inquiry. (Whether internally or under section 188A(11)).

[25] In two recent decisions[7] of this Court where lack of urgency was pronounced and thus leading to the striking of such applications from the roll, the Learned Judges were alive to the fact that facts relating to protected disclosures at this level of litigation, require determination on prima facie basis even if the issues for determination were presented with reference to the decisions made within the scheme of sections 187(1)(h) or 145. In my view, the decision in Ntombela v Community Scheme Ombud Service and Others[8] is no different in this regard except that the Court was satisfied about hearing the matter on urgent basis and went on to determine the merits where the following was said in paragraph 22:

‘[22] It is important to appreciate that it is not necessary for the purposes of establishing good faith that it be proven that information disclosed was correct or true. By definition, and in making the disclosure, the employee must only have ‘reason to believe’, not that the information is actually true, but that the information ‘shows’ or ‘tends to show’ that the impropriety ‘has been’ or ‘is being’ or ‘may be committed in the future.’

[26] In applications of this nature, the Court often has no benefit of fully ventilated issues that went to the extent of being tested through cross-examination. To me, it seems the legislature was aware of this, hence ‘good faith’ is the only element within the scheme of the Protected Disclosures Act inserted in section 188A(11). This should simply translate to a determination of good faith on prima facie basis. It does not appear that the legislature intended to see full ventilation of jurisdictional prerequisites when the Court is called upon for intervention prior to the conclusion of a disciplinary hearing. If full ventilation is undertaken at this level, the parties are likely to view the matter as being decided should it subsequently come to Court in terms section 187(1)(h) or section 145.

[27] In Smyth v Anglorand Securities Ltd[9] whilst deciding an automatically unfair dismissal (after the amendments that introduced section 188A(11)), the Court cautioned against raising the bar too high in determining good faith as it may defeat the purpose of what the Protected Disclosures Act seeks to achieve. This approach is the most appropriate for purposes of deciding on the need to proceed with hearing in terms of section 188A(11) though on prima facie[10] basis. On this note and without hesitation I align myself with the Ntombela decision as the reasoning thereof is indicative of the Court having considered that the bar should not be set too high when assessing good faith within the scheme of section 188A(11). Furthermore, in light of the determination of good faith on prima facie basis at this level of litigation having been accepted in Mohlala-Mulaudzi and Mtetwa decisions, I do not find any reason why this should not be viewed as a settled position thus far.

[28] It can be clearly established from the material placed before this Court through both pleadings and arguments that the contents of the emails submitted by the applicant contradict what Ms Moloto testified about in other hearings prior to that of Ms Mbambo. Secondly, Ms Moloto suggested that the emails were fabricated but the outcome of the investigation reflected otherwise. The first respondent has to date not responded to the applicant’s letters of 14 and 28 February 2024 to which the protected disclosures

were contained.

[29] The malice argued by the first respondent in circumstances where the applicant was initially accused of bringing fabricated emails to the

disciplinary hearing on 31 January 2024 by Ms Moloto could not be proved. The outcome of the investigation does not favour Ms Moloto’s

accusation of fabrication towards the applicant. A suggestion that the applicant’s disclosures are aimed at eliminating Ms Moloto as a witness is not substantiated and can only be relegated to suspicion if not speculation. There is no evidence suggesting that the applicant posted an objection to Ms Moloto’s appearance as a witness before any disciplinary hearing chairperson. In Mohlala-Mulaudzi v Properties Practitioners Regulatory Authority[11] (supra), the Court made a determination on the point of urgency, and made the following observations regarding good faith at paragraphs 43 and 44:

‘[43] A casual and sloppy reading of the subsection suggests that an employee may make a simple allegation of contravention of the PDA in order to invoke the subsection. Not, the allegation must be one made in good faith. This requirement illuminates the fact that the legislature was alive to the fact that an employee may make a wild allegation and thereby gain the right to an inquiry by an arbitrator. This is an instance where an abuse of the subsection creeps in easily. The legislature must have carefully chosen the phrase good faith because in section 9 of the PDA any disclosure made in good faith is protected. It becomes so protected if an employee reasonably believes that the information disclosed and an allegation contained in it are substantially true and the disclosure is not made for the purposes of

personal gain. The phrase good faith, when used as a noun, means honesty or sincerity of intention.

[44] It must follow that the allegation of contravention must have an element of honesty and sincerity. The veritable question is how does a Court faced with an application of this nature test honesty and sincerity of the allegation of contravention? To my mind a contravention must not only be alleged it must prima facie factually exist. I say so because in terms of section 1 of the PDA an occupational detriment in relation to the working environment of an employee means amongst others being subjected to any disciplinary action. Mohlala contends that holding of a disciplinary inquiry as instituted by the PPRA constitutes subjecting her to an occupational detriment on account or partly on account of having made a protected disclosure.’

[30] So long as the charges are about the applicant’s granting Ms Bambo access to a computer to retrieve the very emails that are the subject matter of the disclosures, surely, a link exists between such disclosure and the disciplinary hearing. Those emails appear not to be good news to the first respondent’s case presented at various disciplinary hearings. The applicant has not suggested that he has a right not to be disciplined by the first respondent regarding the sourcing of the emails. He is subjecting himself to a disciplinary hearing albeit under section 188A(11). His referral of the matter to the CCMA confirms this. I find no reason why the disciplinary hearing should not take place in terms of section 188A(11).

[31] The prejudice argument raised by the first respondent that granting the interdict will result in the applicant getting away with accounting for his conduct. According to the first respondent, it will be left with no recourse should the CCMA uphold a preliminary point that it has no jurisdiction to conduct a section 188A(11) inquiry should the interdict be granted. There is no legal basis for this submission. The raising of a preliminary point before the arbitrator will be self-destructive for the first respondent given its persist wishes to the speedy finalization of the disciplinary hearing. Section 188A(11) read with section 188A(1) bestows jurisdiction on the CCMA and inquiry on its jurisdiction will thus be unnecessary[12]. The arbitrator has to conduct the inquiry in terms of the section 188A(11). The section does not empower the arbitrator to make a ruling refusing to hear the matter or to remit the matter to the internal disciplinary hearing in the absence of an interdict. In any event, prejudice is not an element for consideration within the scheme of section 188A(11). On this note, there is no reason to find that the applicant has not made a case for the relief sought. The order should be accordingly granted as prayed for.

Costs

[32] Both parties sought costs against each other. This matter raises exceptional circumstances calling for deviation from the basic principle that costs do not follow the results in labour matters. The first respondent in exercising its right to oppose this application did not in my view do so with intentions of protecting its rights in law or to assist the Court in arriving at an appropriate decision. The first respondent in its affidavit persisted in accusing the applicant of fabricating the emails whilst its own forensic investigations report does not say so. The first respondent acknowledges in the answering affidavit that the applicant has recourse to making his case in the section 188A(11) inquiry without interdicting the disciplinary hearing. This is mutually destructive to its idea of opposing this application. A

resolution might have been found had the applicant instructed its attorneys to furnish a meaningful reply to the applicant’s

attorney’s letter of 7 August 2024. An attempt to engage one another in many instances has the effect of averting litigation of this nature. It will thus be within the requirements of law and fairness to make a cost order against the first respondent in this regard.

[33] In the premises, the following order is made:

Order

1. The application is found to be urgent and is heard as such.

2. The internal disciplinary hearing instituted by the first respondent before the second respondent is hereby interdicted.

3. The first respondent is directed to take all necessary steps to ensure that the applicant’s hearing is conducted under section 188A(11) of the Labour Relations Act.

4. The first respondent is ordered to pay the applicant’s costs.

M Baloyi

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicant: Adv DJ Groenewald

Instructed by: Minnaar Niehaus Attorneys

For the first respondent:0 . Adv M Skhosana

Instructed by: Mashiane Moodley Monama Attorneys

[1] [2021] ZALCJHB 150. The Court per Prinsloo J at paragraph 64 said: “Section 188A(11) entitles an employee, who is about to be subjected to an internal disciplinary process and who alleges in good faith that the intended disciplinary hearing contravenes the PDA, to instead request an inquiry be conducted in terms of section 188A. I see no reason why, if an employer , under circumstances where the employee complies with the requirements of section 188A(11), refuses to have the inquiry into the conduct or capacity of the employee conducted in terms of section 188A, the employee would not be entitled to approach this Court for an order interdicting the impending internal disciplinary hearing and an order directing that the inquiry pertaining to the employee’s conduct or capacity be conducted in terms of section 188A of the LRA”.

[2] Moshoana J pointed out in Mohlala-Muluadzi v Property Practitioners Regulatory Authority and Another [2023] ZALCJHB 19 at para 19 that: “It is worth mentioning that the subsection 188A (11) process is not there for the taking. It is not a simple referral as contemplated in section 191 (1) of the LRA. It comes to the administrative bodies (Commission, Accredited Agency or Council) as a request. To my mind, the purpose of the subsection 188A (11) is to serve as a buffer to a continuation of an occupational detriment. It equates an interdict in that its invocation halts unlawfulness”.

[3] [2023] ZALACJHB 35.

[4] “Despite subsection (1), if an employee alleges in good faith that the holding of an inquiry contravenes the Protected Disclosures Act, 2000 (Act 26 of 2000), that employee or the employer may require that an inquiry be conducted in terms of this section into

allegations by the employer into the conduct or capacity of the employee”.

[5] (1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 549 or, if 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. [S 187(1)(h) ins by s 42 of Act 12 of 2002.

[6] Section 145 provides for the review of arbitration awards, including those made under section 188A(11).

[7] Mohlala-Mulaudzi v Property Practitioners Regulatory Authority [2023] ZALCJHB 19; Mtetwa v Transnet Freight Rail and Operating Division of Transnet (SOC) Limited [2024] ZALCJHB 17 per Tlhotlhalemaje J at paragraph 25.

[8] [2024] ZALCJHB 121.

[9] [2022] ZALCLCJHB 72 at paragraph 56.

[10] In Mohlala-Mulaudzi and Mtetwa decisions it was held that the considerations of jurisdictional prerequisites should be on prima facie basis.

[11] [2023] ZALCJHB 19.

[12] See paragraph 4 in Mohlala-Mulaudzi judgment.