Rights of an informer

A DISCIPLINARY inquiry is an internal process and our courts are reluctant to interfere with it.

A DISCIPLINARY inquiry is an internal process and our courts are reluctant to interfere with it.

Only in exceptional circumstances will the court be willing to interdict an internal disciplinary hearing.

The reluctance is caused by the fact that discipline is the prerogative of the employer. Another consideration is that an employee who is aggrieved by the disciplinary process will always have an alternative remedy.

An employee who makes disclosures about management's conduct is protected in terms of the Protected Disclosure Act (PDA).

However, it often happens that an employer responds by instituting a disciplinary inquiry. This constitutes occupational detriment in terms of the PDA.

Until recently, an employee would subject himself to a disciplinary inquiry and, if aggrieved, challenge the decision of the inquiry.

In the light of the recent decision of the high court in the matter of Young v Coega Development Corporation, an employee who is charged in response to the disclosure may apply to court for a declarator that the charges levelled against him or her constitute an occupational detriment within the meaning of section 1 of the PDA.

If, notwithstanding the application, the employer persists with the disciplinary inquiry, the employee may bring an application interdicting such inquiry pending the determination of his application.

In this particular case, the facts are briefly as follows: that the applicant was a chief financial officer and has made a disclosure about the chief executive officer's conduct.

In response to the disclosures, the employer charged the chief financial officer for allegations relating to short-comings in the performance of his duties.

Rightly so, the chief financial officer instituted an application to the high court under the PDA to have the charges levelled against him declared as constituting occupational detriment.

The court granted an interdict and made an order restraining the employer from proceeding with the disciplinary inquiry instituted against the employee pending the determination of the application brought by the employee.

This decision is important to employees for a number of reasons. Firstly, if the charges are levelled against an employee as a response to the disclosure, the employee may bring an application to have the charges declared constituting occupational detriment within the meaning of section 1 of the PDA.

Secondly, once the charges are declared by the court as occupational detriment, the employer is not allowed to continue with a disciplinary inquiry.

Thirdly, an employee may apply either to the high court or labour court. It is advisable, if an employee views the charges levelled against him or her by the employer to be a response to the disclosures made about management's conduct to court, for a declarator that the charges constitute occupational detriment.

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