Authored by Jason Whyte and Olebogeng Motlhaping.
This February 2026 Labour Court decision highlights the importance of employers protecting and not punishing employees who make protected disclosures in terms of the Protected Disclosures Act, 2000 (PD Act).
The dispute arose when the employee applied for an internal position that was advertised by his employer. The employee was told that he did not have the requisite qualifications for the position and his application was declined. He lodged a complaint about impropriety in the recruitment process because the position was subsequently granted to an unqualified candidate preferred by the regional marketing manager. At the grievance hearing, the employee presented the successful candidate’s CV to show that she did not meet the advertised requirements. Following the hearing, the employee was charged with breaching the confidentiality policy and dishonesty for possession and use of another candidate’s CV. He was subsequently found guilty and was given a warning.
The employee brought an application to the Labour Court and argued that the grievance about impropriety and the use of the CV in the hearing were disclosures made in good faith. Therefore, the charges of misconduct and disciplinary action that followed soon after he lodged the grievance were an ‘occupational detriment’ as defined by the PD Act. The employer maintained that the disciplinary action was not related to the grievance but for the confidentiality breach and dishonesty and, additionally, other employees had been disciplined for similar transgressions.
The court had to decide whether the grievance was a protected disclosure in terms of the PD Act, whether the employee suffered an occupational detriment, and whether there was a causal link between the disclosure and disciplinary action.
Under the PD Act, disclosure includes information showing or tending to show unlawful or irregular conduct, unfair discrimination, or concealment, and a disclosure is “protected” when made in good faith to an employer in accordance with workplace procedures or general disclosures, provided the statutory criteria are met. Importantly, the protection of whistleblowers is expected to make sure that acts of impropriety are eradicated in the workplace and employers must take all necessary steps to ensure that employees who disclose are protected from punishment.
The court found that disclosure by the applicant was a protected disclosure in terms of the Act and explained that correctness is not a factor to be considered when dealing with disclosures. It is required that the disclosure is made in good faith with a reasonable belief in the information disclosed. Additionally, the court explained that instituting disciplinary action is not an occupational detriment. It is only an occupational detriment if a causal connection exists between the disclosure and the disciplinary action. The disciplinary action following shortly after the disclosure led to a conclusion that it was in retaliation to the disclosure, and therefore constituted an occupational detriment. The Court awarded the employee an amount equivalent to eight months’ salary, totalling R229 000 and costs.
The court expressed dissatisfaction at the employer’s decision to investigate the employee instead of the impropriety that was reported. Importantly, employers have a duty to protect whistleblowers to completely eradicate acts of impropriety in the workplace and must take all necessary steps to ensure that whistleblowers are not subject to punishment. Where the disciplinary action closely follows the disclosure, it is important to have a clear, independent reason for the action lest a causal link is established and the action is perceived as retaliatory.
Kunene v Akani Egoli (Pty) Ltd ta Gold Reef City (JS467/24) [2026] ZALCJHB 56 (27 February 2026)