The National Commissioner: Department of Correctional Services v Mnikwelwa Nxele

In 2018, Mr Mnikwelwa Nxele, an employee of the Department of Correctional Services (DCS), made a protected disclosure against the then-National Commissioner, Mr Arthur Fraser. The Public Service Commission found on 10 October 2019 that this constituted a protected disclosure under the Protected Disclosures Act and that Nxele had been subjected to occupational detriment as the DCS admitted that disciplinary charges instituted against him related to his complaint. His first disciplinary hearing was converted into an inquiry under section 188A(11) of the LRA. The section 188A(11) inquiry found that Nxele had not committed the misconduct alleged, save for one alternate count for which a written warning was imposed. His suspension was uplifted and he was directed to report for duty on 14 February 2022. However, the appellant (new National Commissioner appointed September 2021) informed Nxele that his suspension would remain in force pending a review of the inquiry outcome. On 13 February 2022, the DCS served review papers and an urgent interdict application on Nxele to prevent his return to work. On 14 February 2022, members of the National Emergency Response Team physically barred Nxele from entering DCS premises. On 23 February 2022, the Labour Court dismissed the urgent application. On 28 February 2022, Nxele was placed on precautionary suspension. On 5 May 2022, Nxele received notice of a second disciplinary hearing scheduled for 24-27 May 2022, with six charges relating to his attempt to report for duty in February 2022 and additional charges regarding letters he addressed to the Minister and Deputy Minister. Nxele approached the Labour Court seeking that the disciplinary hearing be converted to a section 188A(11) inquiry and that his suspension had lapsed. The Labour Court ruled in his favor. The National Commissioner appealed.

• Whether the Labour Court was correct in finding that Nxele had alleged in good faith that the holding of the second disciplinary inquiry contravened the Protected Disclosures Act, thus entitling him to have it converted into a section 188A(11) inquiry by arbitrator
• Whether a nexus existed between the protected disclosure made in 2018 and the disciplinary charges instituted in May 2022
• Whether the Labour Court correctly found that Nxele's suspension was unlawful
• Whether the defence of lis alibi pendens was available to the appellant regarding the suspension issue
• Whether the costs order made by the Labour Court was appropriate

The appeal was reinstated and condonation for late filing was granted. The appeal was dismissed with costs, including costs of the reinstatement and condonation applications. The Labour Court's order that the second disciplinary enquiry be converted into a section 188A(11) inquiry by arbitrator was confirmed.

Under section 188A(11) of the LRA, an employee need not prove that a disciplinary inquiry contravenes the Protected Disclosures Act; it is sufficient that the employee alleges in good faith that it does. Good faith is a concept sensitive to context and requires assessment of the honesty and sincerity of the employee's belief in light of all surrounding circumstances. A nexus between a protected disclosure and subsequent disciplinary charges can be established by examining objective facts showing a pattern of conduct by the employer. Where an employer responds to an employee's protected disclosure and the outcome of related proceedings in an unusual, heavy-handed, and calculated manner - including deploying emergency response teams to physically bar an employee from work, instituting immediate review proceedings, suspending the employee for attempting to lawfully return to work, and instituting new disciplinary charges relating to those events - such conduct is capable of establishing the necessary nexus to support a finding that the employee has alleged in good faith that the disciplinary proceedings contravene the PDA. Section 3 of the PDA prohibits subjecting an employee to occupational detriment (which includes disciplinary action) "on account, or partly on account, of having made a protected disclosure." Where facts demonstrate a direct correlation between a protected disclosure and subsequent disciplinary charges, this constitutes a continuation of victimization and contravenes the PDA.

The Court commented on the principle of mootness, noting that while mootness is not an absolute bar to justiciability and courts have discretion whether to hear moot matters, the test is one of the interests of justice. A court may decide to resolve a moot issue if doing so would be in the public interest or achieve legal certainty, but where an issue is of purely academic interest and no purpose would be served in determining it, the court should decline to do so. The Court reiterated the general rule in labour matters that costs do not simply follow the result and that losing parties should not ordinarily be mulcted in costs. However, in exercising discretion on costs, courts must strike a fair balance between not unduly discouraging parties from approaching the court while not allowing frivolous cases. In this case, considerations of law and fairness supported the costs order given the facts, the appellant's conduct including continued litigation with limited regard for the public purse, and the limited merit in the appeal. The Court's characterization of the employer's conduct as reflecting "a particular and unusual degree of antipathy" to the inquiry outcome and the employee's return to work serves as guidance that disproportionate employer responses may evidence improper motive related to protected disclosures.

This case provides important guidance on the interpretation and application of section 188A(11) of the LRA in the context of protected disclosures. It clarifies that the good faith requirement does not impose a high evidentiary burden on employees - they need only allege in good faith that the disciplinary proceedings contravene the PDA, not prove such contravention. The case demonstrates that courts will examine the objective facts to determine whether a nexus exists between a protected disclosure and subsequent disciplinary action, and will look for patterns of victimization. It reinforces protection for whistleblowers in the public service and shows that unusual, heavy-handed employer responses to employees following protected disclosures will be scrutinized. The case also illustrates the contextual nature of the 'good faith' requirement and that employer conduct following a protected disclosure will be assessed holistically to determine whether there is occupational detriment contrary to the PDA.