According to its long title, the purpose of the Protected Disclosures Act (PDA) is to provide procedures in terms of which employees in both the private and the public sectors may disclose unlawful or irregular conduct by their employers or by other employees, and to provide for the protection of employees who make such disclosures. The preamble makes it clear that employees have a responsibility to disclose criminal and any other irregular conduct in the workplace, and that employers have a responsibility to take all necessary steps to protect employees from reprisals.
AJ Weyers is employed by the Tshwane Municipality as the managing engineer in the Power Control System (PSC). Rather simplistically, it is the responsibility of Weyers and his subordinates (system operators) to ensure the integrity of the Tshwane electricity grid. There was no dispute that the work performed in the PSC is extremely dangerous. The danger is not only to the system operator himself but also to the public. The PSC section, for instance, deals with complaints about electrical shocks, takes steps to prevent power failures in overload conditions and reconnects a network after a power failure. System operators work on the network while it is live, which is indicative of the hazardous nature of the work environment.
In 2005 there was a significant shortfall in the municipality’s complement of system operators with only 13 of the 48 posts specified in the approved structure for the PSC being filled. Those employed were required to perform excessive and dangerous levels of overtime. In February 2005, Weyers was given permission to recruit additional system operators to address the problem.
He prepared a test to consider applications. The only successful candidates who were short-listed for interviews were white; only white candidates had the basic level of expertise required to serve as system operators, having regard to the test. To exacerbate the problem, all existing systems operators and foreman in the PSC were also white. It followed, therefore, that the short-listed candidates would not satisfy transformation objectives within the municipality or assist in achieving its goals under the Employment Equity Act. The municipality, in its heads of argument, described the performance of the 15 employment equity candidates who applied for the system operator positions and who sat the test as "dismal".
Benny Mahlangu was appointed to the position of General Manager: Electricity Development and Energy Business. He was also to chair the interviews for the vacant positions of system operators. Moreover, the decision of the interviewing committee, on appointments, was to be final. In addition, all transformation responsibilities with regard to human resources were delegated to Mahlangu.
Mahlangu advised Weyers that no white candidates were to be considered for appointment as system operators and that the positions were to be re-advertised. The candidates Weyers had identified (that is the white candidates) could not be employed. The court found that the bona fide view formed by Weyers in the circumstances was that candidates would be employed irrespective of their level of skills or their ability.
In response to such instruction, Weyers sent an email in which he stated: "These positions I would like to fill are critical to the service delivery of Tshwane electricity, and while they are not filled with competent personnel we are sacrificing Batho Pele.”
The system operator posts had been advertised twice, and no new appointments had been made and virtually no employment equity candidates had come forward who possessed the basic level of skills.
In the circumstances, Weyers sought guidance from his professional body the Engineering Council. He subsequently addressed a letter to the Municipal Manager and various other internal municipal role players (who were also protagonists at that stage) setting out his concerns with the approach adopted by the municipality in filling the vacancies in the PSC with what he referred to as "incompetent incumbents." The letter was prepared on the advice of the Engineering Council. The letter was also copied to the Engineering Council and the Department of Labour. This gave rise to disciplinary action being instituted against Weyers for having distributed the letter to the Engineering Council and the Department of Labour.
Having been found guilty of the disciplinary complaint and prior to a sanction being imposed, Weyers approached the North Gauteng High Court, Pretoria for an interdict. The argument presented by him was that he was being exposed to an "occupational detriment" in the form of the disciplinary proceedings as contemplated by the PDA. The court a quo agreed and interdicted the municipality from proceeding with further disciplinary action against him.
On appeal the municipality firstly argued that the High Court did not possess jurisdiction to grant the interdict as it ought to have come before the Labour Court. This argument, correctly in my view, did not find any favour with the SCA and was dismissed entirely. The SCA accordingly endorsed the earlier decision of Kroon J, in the Eastern Cape High Court in Young v Coega Development Corporation (Pty) Ltd.
The SCA also rejected the somewhat narrow interpretation to the concepts of protected disclosure and occupational detriment which the municipality sought to place on such terms. Wallis AJA preferred a more purposive interpretation to these concepts having regard to the spirit and intent of the PDA. This is welcomed. The end result being that the court found that the letter constituted a protected disclosure and the consequent disciplinary action against Weyers amounted to an occupational detriment as envisaged in the PDA. The interdict accordingly remained in place.
The significance of this judgment is, in my view, fourfold:
• Firstly, the SCA has now had an opportunity to scrutinise the PDA and provide a framework in relation to the interpretative tools to be used in the consideration of this important piece of legislation.
• Secondly, the judgment lays to rest the moot point in relation to whether the Labour Court has exclusive jurisdiction to hear disputes emanating from the PDA.
• Thirdly, the court appears to have accepted that an interdict may be granted notwithstanding the existence of alternative remedies in the LRA.
• Finally, the case highlights a concerning feature within the public service: The tension between transformation, service delivery, (nepotism ) and the like.
On this point, Wallis AJA makes the point in the judgment that "… this case is not about… the disciplinary proceedings and whether the sending of the letters … constituted misconduct or whether Mr Weyers received a fair hearing. Nor is the case about the application of the Employment Equity Act in the Tshwane Metropolitan Municipality. Nor does it require any view to be expressed on the wisdom of the approach adopted by either of the main protagonists, Mr Weyers and Mr Mahlangu, to the appointment of system operators … Quite plainly they approached that issue from different perspectives and senses of priority. Whilst one might hope that these difficult issues in our society would always be resolved by mature discussion and mutual understanding, that did not occur in this instance and it is not for this court to determine the rights and wrongs of the situation that arose. Our only task is to determine whether the sending of the letter to the Engineering Council and the Department of Labour was protected by statute".
The court calls for "mature discussion and mutual understanding" on "these difficult issues in our society". I would like to take up this point further with reference to the facts of the City of Tshwane Metropolitan Municipality v Engineering Council of South Africa and another matter.
Weyers was accused by a high ranking official of the municipality of failing to demonstrate a commitment to transformation. On the facts, this allegation was, in my view, without merit.
Weyers for instance suggested that in order to overcome the lack of skills, 40 electricians in the municipality’s employ be made available to him for training. No suggestions are made by the municipality (which it is, as the employer, obliged in terms of the EEA to put in place training initiatives to ensure a transfer of skills and the like) on how to reduce the skills gap and, more importantly, to ensure that within a determinable period in time, a significant percentage of short-listed candidates would be employment equity candidates. Nor is this done having regard to the municipality’s obligations to its rate payers (that is to ensure a supply of electricity). It also begs the question why, in the past 15 years, training was not put in place by the municipality and why has it failed to produce candidates who could meet the minimum requirements of system operators?
The court was critical of the municipality in its judgment on certain issues. Perhaps the council of the municipality should take some time to read the judgment (and the torment of Weyers) to determine what further remedial and (I suggest) disciplinary action be taken against certain of its members of staff.
