Employment and Labour Law Archives

Whistleblower Reinstated: Protected Disclosures Act to the Rescue

July 2026 | Employment and Labour Law

“…the threat of disciplinary action can be held as a sword of Damocles over the heads of employees …” (Supreme Court of Appeal)

The Labour Court’s recent reinstatement of a dismissed whistleblower has confirmed that our laws will robustly protect anyone who reports wrongdoing in the workplace.

“The Whistleblower’s Act” removes the Sword of Damocles

The Protected Disclosures Act (“PDA”) – commonly referred to as the “Whistleblower’s Act” – protects employees, independent contractors, consultants, agents and workers employed by labour brokers from retaliation after reporting unlawful or improper conduct.

Without that protection, as our courts have pointed out, “the threat of disciplinary action can be held as a sword of Damocles over the heads of employees to prevent them from expressing honestly held opinions to those entitled to know of those opinions. A culture of silence rather than one of openness would prevail.”

The Act is complex, and its application is full of grey areas, so specific advice is essential. But in a nutshell:

The PDA applies to both public and private sector employers.
Employers must have in place “internal procedures for receiving and dealing with information about improprieties”.
Any form of reprisal against a whistleblower – not just dismissal but any type of “occupational detriment” (disciplinary action, demotion, suspension, harassment, intimidation, compulsory transfer and the like) – will expose an employer to harsh penalties.
If the reprisal takes the form of a dismissal, it is “automatically unfair” and could result in reinstatement with retrospective back pay, compensation of up to 24 months’ remuneration if reinstatement is inappropriate, payment of actual damages and other appropriate relief. Occupational detriments other than dismissal are deemed to be an “unfair labour practice” with a similarly wide range of remedies.
Any disclosure is protected if made in good faith and with a reasonable belief that it is substantially true, not for personal gain, and in circumstances where it is reasonable to make the disclosure. Employees should be careful here: groundless speculation is not enough, and a whistleblower acting maliciously or recklessly in disclosing false information risks criminal prosecution. Acting in good faith and reasonably is the key.
Once the employee presents evidence to show that the protected disclosure was the reason, or just one of the reasons, for the disciplinary action, the employer must show that it disciplined the employee for a fair reason such as misconduct unrelated to the disclosure.

Dismissed for breaching policy or for talking to the SIU?

In the case in question, a Facilities Manager accused his employer (the National Student Financial Aid Scheme, a public sector organisation) of unfairly dismissing him.

He had become seriously concerned when a tender specification for new office space was approved without being signed off either by him or by his immediate line manager. That, he said, was a fundamental procedural irregularity because he was effectively the “end user” representative in procurement processes related to lease agreements.

Worse still, the employer went ahead and accepted a lease option that was both more expensive (we’re talking big money here, with rental to the tune of R2 million per month) and less practical (it needed extensive fitting-out before occupation) than another, more affordable option. A proposed five-year extension of the lease reinforced the manager’s belief that irregular and wasteful expenditure was being incurred.

He did everything he could to alert senior management to his concerns, exhausting all the internal reporting mechanisms available to him – but to no effect.

Then came a break, when the Special Investigating Unit (SIU) was called in by the President to investigate irregularities at the organisation. The manager, on the advice of his employer’s internal audit lead, told SIU investigators about the serious procurement irregularities he had identified.

To support his disclosures, and out of fear of victimisation and to preserve evidence, he emailed relevant emails and other documents to his private email address, forwarding them to the SIU.

When these disclosures were leaked into the public domain, his employer launched an investigation into the source of the leaked information. It identified the manager as the informant and dismissed him for contravening its ICT (Information and Communication Technology) policies by forwarding work emails to his personal email address.

The Court however accepted the manager’s contention that his dismissal was not genuinely about a breach of policy but was instead a pretext for retaliation. His contraventions of company policy were an integral part of the disclosure process, his disclosures were protected, and his dismissal was automatically unfair.

His employer must reinstate him with full back pay, and, to rub salt into its wounds, it must also pay all his legal costs on the punitive attorney and own client scale.

Tips for employees

Make sure that your disclosures will pass all the tests we set out above and follow the correct procedures in making them. As we said above, good faith and reasonableness are your watchwords here.

Tips for employers

Put a whistleblower policy in place and tell all your employees about it. It’s not just a legal requirement: your business can only benefit from uncovering any improper or criminal conduct going on behind your back.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

How to Protect Your Company from Unlawful Springboarding

June 2026 | Employment and Labour Law, Intellectual Property

“All’s fair in love and war, but not in business.” (Modern twist on the old proverb)

Your business is flying after years of hard work and personal sacrifice. Suddenly, your most trusted employees resign and set up in direct opposition to you. The speed with which they do so makes you realise there’s something fishy going on.

Sure enough, they are brazenly using your confidential knowledge, resources and client relationships against you.

A recent High Court decision provides a perfect illustration of how our law can and will protect you from that sort of unfair competition.

A new business and software in 11 days? Something’s fishy

This unhappy saga starts with a company in the niche business of measuring and analysing diesel engine emissions. Monitoring these emissions is important in several industries, most notably the underground mining industry. It’s the first and only such business in South Africa thanks largely to two factors: firstly, its exclusive Africa-wide distribution agreement with a German supplier of specialised equipment, and secondly, its founder’s development of custom software.

All went well until two of the company’s senior managers resigned from their positions. Just 11 days later they had set up their own business in direct opposition to their erstwhile employer. One can only imagine his distress and anger when he realised that they were using the fruits of his technical expertise and hard work to try to poach his clients from him.

He lost no time in taking legal steps, and when the managers refused point blank to stop trading, he asked the High Court for an order forcing them to do so.

What is springboarding?

“Springboarding”, as the Court put it, “entails not starting at the beginning at developing a technique, process, piece of equipment or product, but using as a starting point the fruits of someone else’s labour.”

Competition and entrepreneurship are of course healthy and to be encouraged, but only if they are lawful. Springboarding grounded in unlawful conduct is prohibited.

From springboarder to belly flopper

The evidence of unlawful conduct in this case was overwhelming. For example, one of the managers had months previously been suspended under suspicion of planning a competing business after a budget for a new venture, including a provision to buy the specialised German equipment, was found on his laptop. In due course their new company duly bought the equipment, despite them having full knowledge of the distribution agreement in favour of their employer (they couldn’t deny knowledge, having actually signed the agreement on behalf of the employer).

The Court was also sceptical of the new company’s claim to have developed its own independent software in a matter of weeks, especially in light of evidence that, shortly before resigning, one of the managers had emailed his employer’s software to himself.

The final nail in the managers’ coffin was that their marketing presentations to two of the employer’s clients were sufficiently similar to the employer’s presentations for the Court to conclude that they were using its business model, methodology, equipment and software against it.

As regards their terms of employment, only one of the employees had signed a contract (it included a confidentiality clause). But what mattered was not their contracts, but that as employees they had a general fiduciary duty to act in good faith and in their employer’s best interests.

Referring to the abundant evidence of their misuse of confidential information gained during their employment, the Court slammed the managers and their new company with a series of orders that will presumably cripple their new venture, at least for now.

They and their new company are prohibited from unlawfully competing with the original business for eighteen months, they must return all confidential information and documentation (deleting electronic copies), and cannot disclose the information to anyone else. What’s more, the Court ordered them to pay costs on the punitive attorney and client cost scale.

A checklist to protect your business from springboarding

The employer is victorious, but it’s taken him almost a year to get here, and inevitably his business (and he personally) will have suffered.

With prevention always being a great deal better than cure, you can protect your business from going through all the delay, cost, trauma and business risk of a court fight with this checklist:

Watertight contracts. Your employment contracts, particularly those relating to senior staff with access to vital confidential information, should contain strong confidentiality, non-disclosure, good faith, conflict of interest and restraint of trade clauses. This employer was able to rely on a breach of his employees’ general fiduciary duties, but his position would have been that much stronger had both senior managers been bound contractually as well.
Widen the net. Looking beyond employees, consider also other business partners like suppliers and contractors who might gain access to confidential information, and structure your agreements with them accordingly.
Quantify your worth. Identify and list all your confidential information: intellectual property, technical know-how, client and other business relationships, pricing strategies, business strategies, trade secrets and any other sensitive information.
Be prepared. Check that everything is held securely, that access is limited on a need-to-know basis to trusted personnel, and that access is recorded. This way, if you are stabbed in the back by an employee, you’ll be able to prove misconduct and breach of fiduciary duty.
No stone unturned. When staff leave, remind them (in writing) of their duties in regard to confidential information, and recover all company documentation, laptops etc before they leave.
Be vigilant. Monitor for “information leaks” and for any other possible misuse of confidential information. Increase your monitoring when staff resign. Keep an eye on your competition for any signs of them using information leaked from within your ranks.

Perhaps most importantly, act decisively at the first hint of a springboarding attempt. A robust lawyer’s letter will often be enough to nip the problem in the bud.

Bad Manager or Workplace Bully? Where the Law Draws the Line

April 2026 | Employment and Labour Law

“To avoid criticism, do nothing, say nothing, be nothing.” (Elbert Hubbard)

An unpleasant boss. A strained working relationship. A manager whose style leaves much to be desired. Sound familiar? For many employees, the line between a miserable workplace and an unlawful one is frustratingly blurry. A 2023 Labour Court judgment helps draw that line more clearly. And the verdict may surprise some employees who’ve been banking on a harassment claim.

A senior official takes her employer to court

A Deputy Director-General at the Department of Justice and Constitutional Development referred a claim of unfair discrimination to the Labour Court. She alleged that she had been harassed on arbitrary grounds (as opposed to listed grounds like “race” or “gender”) in contravention of the Employment Equity Act (EEA).

Her complaints were wide-ranging: inadequate administrative support and resources, the removal of some of her work functions and reportees, what she viewed as selective disciplinary sanctions, a precautionary transfer she experienced as a demotion, being denied international travel and refused leave requests, plus a failure by the Department to consider her grievances.

The Court dismissed her claim in full.

What does “harassment” actually mean in law?

The Court was at pains to distinguish between exercising ordinary managerial authority and conduct that crosses into unlawful harassment. The two are easily confused, and employees sometimes interpret unwelcome management decisions as harassment simply because the consequences are unpleasant.

For conduct to constitute harassment under the EEA, it must meet an objective test. It must:

Impair the employee’s dignity. Feeling sidelined or unhappy is not enough. The conduct must cause demonstrable harm to dignity.
Create a hostile or intimidating work environment. Tension and friction are regrettably common in workplaces. The bar is higher than mere discomfort.
Be linked to a prohibited or arbitrary ground. This is the element that catches many claimants off guard. An “arbitrary ground” is an unlisted personal characteristic, but it must be inherent to the person, form the basis for the ill-treatment, and result in substantial harm comparable to listed grounds like race or gender. Generalised management decisions, however unwelcome, do not qualify.

Crucially, the test is objective, not subjective. What matters is not solely how the employee experienced the conduct, but how a reasonable person would assess it in context.

Where the DDG’s case fell short

The Court found that, objectively assessed, her complaints amounted to the unpleasant consequences of management decisions rather than harassment in the legal sense. Significantly, she was unable to explain why the treatment she experienced amounted to unfair discrimination. A bald allegation is not sufficient. Employees must clearly establish the link between the conduct and a dignity-impairing ground.

What employers and employees should take from this

Employers may take some comfort here. Issuing instructions, reallocating duties, managing performance, declining travel requests, and initiating investigations are ordinary management functions. Provided those decisions are rational, grounded in legitimate operational reasons, consistently applied, and properly documented, they will not automatically expose employers to harassment claims.

That said, the Court was clear that managerial discretion has its limits. Decisions must be fair, transparent, and free from personalisation or arbitrary whim. When they are not, they may give rise to legal challenge.

Employees should be aware that the EEA is not a catch-all for general workplace dissatisfaction. If your complaint relates to a transfer, disciplinary steps, or benefits, the proper route is likely the Labour Relations Act’s unfair labour practice framework, not an EEA harassment claim.

The distinction between a difficult manager and a workplace bully matters enormously, both legally and practically. If you are uncertain which side of the line your situation falls on, come and talk to us.

Effective 1 March 2026: New National Minimum Wage

March 2026 | Employment and Labour Law

The National Minimum Wage (NMW) for each “ordinary hour worked” has been increased from 1 March 2026 by 5% from R28,79 per hour to R30,23 per hour.

Domestic workers: Assuming a work month of 22 days x 8 hours per day, R30,23 per hour equates to R241,84 per day or R5320,48 per month. Of course, this is just the bare legal minimum. The Living Wage calculator will help you check whether you are actually paying enough to cover a household’s “minimal need” (adjust the “Assumptions” in the calculator to ensure that the figures used are up-to-date).

Workplace Sexual Harassment: It’s the Victim’s Perspective That Counts

January 2026 | Employment and Labour Law

“Sexual harassment is the most heinous conduct that plagues the workplace.” (Extract from the judgment below)

Our courts have no tolerance for sexual harassment in the workplace, stressing that, at its core, it is concerned with power dynamics at work.

A recent Labour Court decision has confirmed that in assessing whether or not an employee is guilty of such harassment, it is the victim’s perspective that must lie at the heart of the enquiry. Victims will take heart from this decision, while employers and other employees should understand clearly the dangers of not heeding it.

Manager fired after inviting an employee to sit on his lap

A bank manager was found guilty of two counts of gross misconduct in respect of:

Sexual harassment: Allegations of inappropriate, unwelcome comments towards a female employee, which she said continued despite her asking him to stop.These comments were about her hair, clothing and appearance, such as “you are so beautiful”, “you are so stunning”, and “black looks good on you.” Most tellingly perhaps, he suggested that she sit on his lap when he was taking employee temperatures as part of a Covid screening process. All conduct that, she said, upset and offended her.
A harassment allegation of slamming a metal recycling bin lid to frighten her.

The manager denied all these allegations but was found guilty and summarily dismissed. He approached the CCMA (Commission for Conciliation, Mediation and Arbitration) where the arbitrator, deciding that the employee was untruthful and that no harassment had been proved, held that the dismissal was substantively unfair and awarded the manager R400k in back pay.

The bank took this decision on review to the Labour Court, which reversed the finding and confirmed the manager’s dismissal.

Let’s have a look at the Court’s reasoning.

Firstly, what exactly amounts to “harassment” and “sexual harassment”?

In general terms:

Harassment is unwanted conduct which impairs dignity, which creates a hostile or intimidating work environment for one or more employees, and is related to prohibited grounds of discrimination like race, gender, or disability.
Sexual harassment refers to persistent, unsolicited, and unwanted sexual advances or suggestions by one person to another. The “Code of Good Practice on Sexual Harassment” sets out guidelines for identifying and handling such cases.

The victim’s point of view is critical

The Court in deciding to confirm the manager’s dismissal commented that sexual harassment is heinous conduct. As it goes to the root of one’s being, it must be viewed from the victim’s point of view, how the victim perceived it and whether or not that perception is reasonable.

In this case, held the Court, the employee’s evidence was supported by the probabilities and was more credible than her manager’s version. He was accordingly guilty of the charges of harassment and sexual harassment, his employer could not fairly have been expected to continue the employment relationship with him, and his dismissal was fair.

Victims will take heart from this outcome, and it’s a warning to both employers and other employees to view all workplace conduct from the perspective of those on the receiving end.

Perhaps a good way of looking at it could be this: Might the recipient of a “compliment” or other “innocuous” conduct reasonably construe it as inappropriate and unwelcome? If so, employers have a duty to act, and perpetrators are in trouble.

Alcohol at Work: The Cough Mixture Defence

November 2025 | Employment and Labour Law

“The employer shall ensure, as far as is reasonably practicable, that all persons who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.” (Occupational Health and Safety Act)

The season of goodwill, holidays, celebrations, and year-end functions is upon us once again. And with it comes a timely reminder to employers that, while their “zero tolerance” alcohol-at-work policies may be key to maintaining health and safety in the workplace, they have their limits when it comes to disciplining offenders.

Two teaspoons of cough mixture

A forklift driver with an impeccable six-year record of service at a beverage manufacturer arrived an hour late for work, then failed a routine breathalyser test – routine in that all employees knew they would be tested on entering and leaving the factory.

He was adamant that he hadn’t been drinking but explained that he’d had some of his neighbour’s cough mixture the night before and another two teaspoons that morning, without knowing that it contained alcohol as he hadn’t read the label.

Critically, he didn’t smell of alcohol and displayed no visible signs of impairment or of being intoxicated.

Nevertheless, he was dismissed for gross misconduct on the grounds that he had breached his employer’s Alcohol, Drug and Substance Abuse Policy, which he knew about and which prohibits employees from having any intoxicating substances in their bloodstream during working hours. It further forbids them from using any alcohol during work or within six hours of the start of their shift. What’s more, it includes a zero-tolerance clause to the effect that no alcohol in an employee’s blood is permitted, and that higher levels of alcohol will automatically lead to a disciplinary hearing and possible dismissal.

The employee disputed his dismissal at the CCMA (Commission for Conciliation, Mediation and Arbitration) which found it to be substantively unfair and ordered his reinstatement with an award of R24,600 in lieu of arrear salary. This despite the employer’s explanation that a zero-tolerance approach was required because an employee working on machinery while under the influence posed a serious occupational and health risk.

The employer took the CCMA’s reinstatement award on review to the Labour Court, but it was unable to convince the Court that dismissal was justified. Its failure to do so holds valuable lessons for all employers and employees.

What must an employer prove to justify dismissal?

As an employer, your duty to ensure health and safety in the workplace may well call for a zero-tolerance policy against substance abuse, particularly in safety-sensitive situations like employees operating heavy machinery (the heavy-duty forklift in this case being a good example).

But a zero-tolerance policy “will only be accepted where the circumstances necessitate its implementation”. Even then, it doesn’t mean that you can automatically dismiss an employee contravening it. You have to go further.

You need to treat each case on its own merits, and be ready to justify whatever sanction you decide to impose by proving that:

There was a workplace rule in place.
The employee was aware of it. Ideally, you should educate staff on the importance of the policy with specific reference to the dangers of alcohol and other banned substances being present in food products, cooked foods, medicines and the like.
The employee wilfully broke the rule.
The nature and responsibilities of the job, the significance of the rule, the employee’s disciplinary record, the process of progressive discipline, and the potential harm caused by the misconduct (fitness for duty and threats to workplace safety would be major factors here) are all sufficient to show that dismissal is “appropriate and proportional to the offence that was committed”.

The employer’s challenge in this case was that it couldn’t prove that the forklift driver knew there was alcohol in the cough mixture, leading the arbitrator to accept his version that he had not knowingly breached the zero-tolerance rule. It was also unable to prove that the driver’s faculties had been impaired, an important factor in the arbitrator’s conclusion that dismissal was not an appropriate sanction here.

No doubt the employer’s case would have been stronger had its zero-tolerance rule specifically required employees to check for alcohol content in all medicines used – but even then, it would still have had to show overall fairness and proportionality.

Are zero-tolerance policies pointless?

Not at all. Our labour courts have previously upheld dismissals in similar cases. Every case is different, with each matter being a balancing act between the employer’s duty to ensure safety in the workplace on the one hand, and its duty to act fairly in enforcing its disciplinary policies on the other.

Bear in mind also that this Court was not “re-trying” the matter but only assessing whether or not the arbitrator’s decision could be considered reasonable in light of all the facts and evidence presented. Another arbitrator presented with a different set of facts could well have decided in the employer’s favour.

The fairness factor

Review your workplace policies and procedures to ensure that they are as tightly worded and as justifiable as possible, and bear in mind that, as the Labour Appeal Court has summarised the legal position, (emphasis supplied): “the law does not allow an employer to adopt a zero-tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence … The touchstone of the law of dismissal is fairness and an employer cannot contract out of it.”

Employees: This is no “get out of jail free” card

One wonders how often the “cough mixture” defence has been tried both by employees breathalysed at work, and by late-night jollers pulled over at police roadblocks. Of course, it could get you off the hook, just as it did our forklift driver here, but don’t take a chance on it. And don’t unwittingly break the rules – check what’s in your medicines before you take them!

Our employment laws are complex and the penalties for getting them wrong substantial, so call us if you need any help in reviewing or enforcing your workplace policies.

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