Jacobs v KwaZulu-Natal Treasury

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Waglay JP and Davis JA and Kubushi AJA
• Judgment Date: 09 December 2021
• Docket Number: DA7/20
• Hearing Date: 05 November 2021
• Court: Labour Appeal Court
• Citation: 2022 JDR 1997 (LAC)

Kubushi AJA:

[1]

The crux of this appeal is whether an employer may invoke a confidential agreement to conceal wrong doings in the workplace, and whether an employee who has signed a confidentiality agreement requires the permission of the employer to reveal wrongdoings in the workplace, particularly when the information is required in legal proceedings, in this matter, in the arbitration proceedings.

[2]

The appellant, was charged and dismissed for misconduct concerning the allegations that the appellant breached an obligation to keep confidential information pertaining to a recruitment and selection process to which she was privy to by reason of her position as a member of the selection committee. It was alleged that the appellant breached such confidentiality agreement when she disclosed some information pertaining to the recruitment process, in an

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affidavit tendered as evidence in arbitration proceedings (unrelated to these proceedings), without first obtaining the permission of the employer.

[3]

The dismissal dispute was referred to the relevant bargaining council. The pivotal finding of the arbitration turned on the veracity of the affidavit in question, particularly in connection with whether the appellant was telling the truth when she stated in the affidavit that the minutes of the selection panel were amended, and whether she required the permission of the employer before the information in the affidavit was released. The commissioner found the appellant not honest when she stated that the minutes were amended. The arbitrator, further, found that the appellant breached the confidentiality agreement when she did not seek permission to disclose the information attested to in the affidavit. Consequently, in the arbitration award issued by the arbitrator, the appellant's dismissal was found to be procedurally and substantively fair.

[4]

The dispute eventually ended before the court a quo on review. The appellant challenged the arbitration award, alleging that the commissioner committed several reviewable irregularities which amounted to her rendering the award that no reasonable commissioner could have rendered. The decisive finding of the court a quo was that it had no power to review the finding by the arbitrator that the appellant was dishonest when she stated under oath that the minutes of the selection panel were amended. The finding was reinforced by the court a quo's reasoning that the appellant chose to pursue the review application without the full record of the arbitration, thus making it impossible for the court a quo to determine the credibility of evidence tendered by the appellant's witnesses at the arbitration proceedings. Consequently, the court a quo confirmed the arbitration award that the dismissal of the appellant was procedurally and substantively fair, and, dismissed the appellant's claim for relief.

[5]

The appellant aggrieved by the judgment and order of the court a quo, has approached this court, leave to appeal having been granted on petition to this court, to appeal against the entire judgment and order of the court a quo.

[6]

It became obvious during the deliberations in this court that the core issue would turn on the truthfulness and/or falsity of the affidavit in question. The parties

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Kubushi AJA

were, also, in agreement that should the affidavit be found to be truthful, the issue of the confidentiality agreement would fall away. Primarily, the question was whether the minutes of the selection committee had been changed. If it was to be found that the minutes were indeed changed, then, it would mean that the appellant's affidavit was not false, and if it is so, the issue of the confidentiality does not arise.

[7]

The appeal is opposed only by the first respondent, and for convenience, I shall in this judgment refer to the first respondent as the respondent.

Factual Matrix:

[8]

The facts upon which the appeal is based are mostly common cause and are gleaned from the record of the proceedings. The appellant was employed with the respondent in 2015 as Director: Supply Chain Management, until her dismissal in 2017. At the time of her dismissal, she had been employed in the Public Service for twenty-one (21) years.

[9]

The incident that is the subject matter of this appeal occurred in 2009, when the appellant was in the employment of KwaZulu-Natal Department of Community, Safety and Liaison ("the Department of Community, Safety and Liaison"). The appellant was, then, tasked as a member of a panel constituted to recommend a candidate for appointment to the position of Assistant Manager: Assets and Logistics. The other members of the selection panel included Ms Buthelezi, the chairperson of the panel, Mr Siphengane and Mr Ashley Naidoo. Mr Parthab acted as the secretary of the panel.

[10]

In her capacity as a panel member, like other panel members, the appellant signed a Disclosure and Confidentiality Agreement ("the Confidentiality Agreement"). In terms of the said Confidentiality Agreement, the appellant undertook to keep confidential and not disclose or discuss with any person apart from the panel members and the Human Resources representative, in any direct or indirect manner, any matters raised in any part of the shortlisting/interviews or any related matter not mentioned therein. She, further, acknowledged that she could be subjected to disciplinary action if she breached the said confidentiality obligation, by disclosing, either verbally or in writing or by any other means, any matters raised in any part of the shortlisting/interviews.

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[11]

In terms of the job advertisement, candidates were required, amongst others, to have detailed working knowledge of various applicable policies and legislation and to be proficient in a computer program known as HARDCAT. The appellant was responsible for setting the test for the potential candidates on the HARDCAT system whilst another panel member, Mr Ashley Naidoo, was responsible for evaluating the scores of each of the candidates.

[12]

Each of the shortlisted candidates was subjected to a computer literacy test on the HARDCAT program, followed immediately by an interview comprised of a set of specific questions. According to the evidence of the appellant, after the selection process was finalised, two candidates, Ms Van der Merwe and Ms Jamile, were found to have performed very well, but it was decided that Ms Van der Merwe be recommended for the appointment as she had obtained a higher score than Ms Jamile in the HARDCAT test.

[13]

It is alleged that a few weeks after the panel discussion in which Ms Van der Merwe was recommended for appointment, the appellant received the minutes of the selection panel from Mr Parthab for signature. It became apparent to the appellant that the minutes did not reflect the correct position as to the person recommended for appointment by the selection panel. In the...