Authored by Frances Barker and Jason Whyte

In Abrahams v National Student Financial Aid Scheme (NSFAS), the Labour Court held that an employee, dismissed, ostensibly for breaching an Information and Communication Technology (ICT) policy, was, in fact, dismissed for making a protected disclosure – rendering the dismissal automatically unfair under section 187(1)(h) of the Labour Relations Act, 1995. The judgment is a reminder to employers that where a protected disclosure lurks behind a disciplinary charge, the court will look past form to identify the real reason for dismissal. 

What is a “disclosure” under the PDA? 

The Protected Disclosures Act, 2000 (the PDA) defines a “disclosure” to include any disclosure of information regarding conduct of an employer or employee where the disclosing employee has reason to believe that the information shows or tends to show that a criminal offence has been committed, that a person has failed to comply with a legal obligation, or that any of those matter is being deliberately concealed. A disclosure made in accordance with the channels recognised by the PDA – including to an appropriate external body – qualifies as a “protected disclosure”. An employee who makes a protected disclosure may not be subjected to any occupational detriment, which expressly includes disciplinary action and dismissal.  

The facts 

The employee was employed by NSFAS as a Facilities Manager. In that role, he identified what he believed to be serious irregularities in a procurement process for new office premises – including inflated space requirements, procedural bypasses, and ultimately fruitless and wasteful expenditure of approximately R2 million per month in rent on a largely unoccupied building. After exhausting internal reporting channels without effect, the employee disclosed his concerns to the Special Investigating Unit (SIU) and forwarded supporting emails to his personal email address before passing them on.  

Nothing happened until a Member of Parliament publicly revealed the same information. The very next day, NSFAS launched a narrowly targeted email investigation – searching only for correspondence containing terms related to the office move. This led directly to the employee. He was charged with breaching the ICT policy by emailing confidential information to his personal account, found guilty, and dismissed in May 2023.  

The Labour Court’s finding 

The Labour Court held that the forwarding of emails was not an independent act of misconduct that merely coexisted with the disclosure – it was the very means by which the disclosure was carried out. The ICT investigation was not a general audit of email practices; it was directed at identifying who was responsible for the leak of specific information exposing corruption. The court found that, but for the publication of the information the employee had disclosed, there would have been no investigation and no dismissal.  

Importantly, the court rejected NSFAS’s argument that because it did not know the employee had disclosed the information to the SIU, the dismissal could not be causally connected to the disclosure. The enquiry is into the real cause of dismissal, not the employer’s characterisation of it. The employee was reinstated with full back-pay, and NSFAS was ordered to pay his legal costs on an attorney-and-own-client scale.  

Lessons for employers 

This judgment reinforces that employers must exercise caution before disciplining employees where a protected disclosure may have been made. The PDA casts the net wide – if any one of the reasons for a dismissal is the employee’s protected disclosure, even partly, the dismissal is automatically unfair. Dressing up retaliation as a policy breach will not insulate an employer from consequences where the disciplinary action is causally connected to the disclosure.  

Abrahams v National Student Financial Aid Scheme (NSFAS) (C463/2023) [2026] ZALCCT 81 (26 May 2026)