Employee disciplined for whistleblowing wins R229,600 compensation as Gold Reef City is appeal dismissed
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The Labour Court in Johannesburg dismissed the leave to appeal application by Akani Egoli (Pty) Ltd, trading as Gold Reef City, after the company was ordered to pay R229,600 in compensation to an employee who faced disciplinary action for exposing irregularities in a recruitment process.
In February, IOL reported that Acting Judge Ndivhuho Tshisevhe found that Lindokuhle Kunene had suffered an occupational detriment after reporting alleged improprieties in the recruitment process.
Although Kunene sought 12 months’ compensation amounting to R344,400, the court awarded him eight months’ salary, totalling R229,600, finding the amount just and equitable in the circumstances.
Dissatisfied with the ruling, Gold Reef City filed an application for leave to appeal, which was subsequently dismissed.
“Having considered the grounds for leave to appeal, as well as the opposing submissions, I conclude that the application has no reasonable prospects of success,” Judge Tshisevhe said.
The issues date back to September 2023, when Kunene, who had been employed as a Marketing Producer since 2021, applied for an advertised Events Manager position. 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 was 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 regarding 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 had made a disclosure as defined in the Protected Disclosures Act (PDA), whether the disclosure was protected, whether he had suffered an occupational detriment, and whether 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 had occurred and was 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 had also been 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 at the time.
sinenhlanhla.masilela@iol.co.za
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