Sometimes it helps to have an external investigator

At times, disciplinary hearings can get messy, with a lot of emotion riding on the proceedings. Thus bringing in an external consultant can offer muchneeded objectivity as was the case in National Institute for the Humanities and Social Sciences (NIHSS) v Lephoto and another —( 2020) 29 LAC 1.11.16 also reported at [2020] 3 BLLR 257 (LAC).

The employee was dismissed when the 12-month probationary period of his fiveyear contract — as the CFO — expired. He contended he had been dismissed for making protected disclosures concerning the CEO’s involvement in supply chain management.

The allegation was that the CEO had been improperly interfering with supply chain procedures. This allegation was made soon after the CEO had consulted an attorney about the employee’s performance. The CEO appointed an outside attorney to investigate the employee’s allegations and to establish if his relationship with the CEO had broken down irretrievably.

The attorney found that the relationship between the employee and the CEO had broken down irretrievably and that the employee had failed to prove any of his allegations. The attorney recommended that disciplinary action be taken against the employee. After the employee declined to meet the board’s chair, the board resolved to terminate his employment.

The Labour Court found that the employee’s dismissal constituted an occupational detriment as defined in the Protected Disclosures Act 26 of 2000.

On appeal to the Labour Appeal Court (LAC), it was held that the first question to be answered was if the employee had made a protected disclosure. The LAC concluded that there was nothing to preclude the CEO of a public entity from having a direct working relationship with an external auditing firm appointed to work under the CEO’s supervision.

The court held further that the allegations made by the employee flowed from a belief that he was being unfairly treated by the CEO. This was not a complaint falling within the definition of

“protected disclosure”.

The court held that it was clear, from the evidence, that his performance was seriously lacking. He had made serious financial miscalculations and had failed to attend critical meetings.

The board had acted on the recommendations of an attorney who had carefully and patiently investigated the employee’s allegations, despite attacks on his integrity by the employee.

The appeal was upheld with costs and the labour court’s order was substituted with an order that the application was dismissed with costs.

•