Labour Court orders Gold Reef City to compensate employee after disciplining him for whistleblowing.
Image: Karen Sandison/Independent Newspapers
The Labour Court in Johannesburg has ordered Akani Egoli (Pty) Ltd, trading as Gold Reef City, to pay R229,600 in compensation to an employee who was subjected to disciplinary action after exposing irregularities in a recruitment process.
Acting Judge Ndivhuho Tshisevhe found that Lindokuhle Kunene had suffered an occupational detriment after reporting alleged improprieties in the recruitment process.
Kunene, who has been employed as a Marketing Producer since 2021, applied for an Events Manager position advertised in September 2023. He was not shortlisted and was informed that he lacked the required experience.
During a grievance hearing in January 2024, Kunene produced the CV of the successful candidate, Ashleigh Scott-Roux, alleging that she did not meet the minimum requirements set out in the advertisement. He further claimed that the recruitment process had been irregular and that a senior manager, Gareth Kaschule, had improperly influenced the appointment.
Shortly after raising these concerns, Kunene was charged with breaching the Protection of Personal Information Act (POPIA), violating the company’s whistleblowing policy, and committing gross dishonesty in relation to how he obtained the CV. He was ultimately issued with a final written warning. However, Kunene argued that the disciplinary action was retaliation for whistleblowing.
The court had to determine whether:
Kunene made a disclosure as defined in the Protected Disclosures Act (PDA);
The disclosure was protected;
He suffered an occupational detriment; and
There was a causal link between the disclosure and the disciplinary action.
Judge Tshisevhe found that Kunene’s disclosure during the grievance process constituted a protected disclosure under the PDA. The court held that an employee need only have a reasonable belief that an impropriety occurred, and is not required to prove the correctness of the information.
The judgment noted inconsistencies in the evidence regarding the qualifications and experience of the appointed candidate. The court described aspects of the recruitment process as “questionable” and criticised the conduct of senior management.
Importantly, the court rejected the employer’s argument that no occupational detriment had occurred because other employees were also disciplined. It found that the disciplinary charges against Kunene flowed directly from his protected disclosure.
“The charges against the applicant were nothing but retaliation for whistleblowing,” the judge said.
Judge Tshisevhe concluded that the protected disclosure was the dominant and proximate cause of the disciplinary action, amounting to an unfair labour practice in terms of the Labour Relations Act.
Although Kunene sought 12 months’ compensation amounting to R344,400, the court awarded eight months’ salary — R229,600 — finding this to be just and equitable in the circumstances.
The court also ordered the company to pay the reasonable litigation-related costs incurred by Kunene, who represented himself.
In its ruling, the court further emphasised the importance of protecting whistleblowers and stated that employers who act inappropriately against them should expect to be sanctioned.
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