The central issue in Maduna v Lociware (JS 148/23) [2026] ZALCJHB (21 September 2026), recently decided by the Labour Court, was whether the employee’s dismissal was automatically unfair under section 187(1)(h) of the Labour Relations Act 66 of 1995 (LRA) on the ground that it followed from protected disclosures he claimed to have made. In answering that question, the court drew a clear line between an ordinary complaint about workplace dissatisfaction and a protected disclosure under the Protected Disclosures Act 26 of 2000 (PDA). Labelling a complaint a “protected disclosure” does not make it one: what remains decisive is the substance of what was disclosed, the basis for the employee’s belief that it pointed to wrongdoing, and the connection between the disclosure and the alleged occupational detriment.
At a glance
- The Labour Court has confirmed that not every workplace complaint becomes a protected disclosure simply because it is said to be one.
- The Protected Disclosures Act 26 of 2000 protects qualifying disclosures of information concerning impropriety; it does not transform allegations, suspicions or workplace dissatisfaction into protected whistle-blowing.
- For employers, the focus should remain on the substance of the disclosure, the basis for the employee’s belief, and whether the alleged disclosure can properly be linked to the detriment complained of.
Background
The employee was employed by Lociware, a joint venture established by Avis and Budget Rent-a-car (a division of Barloworld (Pty) Ltd) and Shell Downstream South Africa (Pty) Ltd (Shell), as a health and safety representative, and also served on its executive committee (Exco) and as a trustee of the Lociware Trust (Trust). The Trust was established as part of Lociware’s Broad-based Black Economic Empowerment (B-BBEE) structure, with its employees as beneficiaries.
The employee raised a series of complaints concerning, among other things, the Trust’s financial position, the absence of dividends, trustee vacancies and alleged governance irregularities. He later contended that these communications, together with further complaints made to Shell, his attorneys and the Directorate for Priority Crime Investigation (Hawks), constituted protected disclosures, and that his dismissal for misconduct was therefore automatically unfair under section 187(1)(h) of the LRA because it was in retaliation for those disclosures. In the alternative, he contended that the dismissal was procedurally and substantively unfair.
The court rejected this contention and the automatically unfair dismissal claim. It further declined to determine the alternative claim that the dismissal was substantively and procedurally unfair, holding that it lacked jurisdiction to do so because such a claim must be referred to arbitration.
Looking beyond the label
The judgment illustrates, once again, the primacy of substance over form in the context of protected disclosures. It is not enough for an employee to characterise a complaint as “whistle-blowing”, or to describe conduct as “irregular”, “unlawful” or “criminal”. The question is whether the information disclosed meets the requirements of a protected disclosure under the PDA.
A central difficulty for the employee was that much of the information on which he relied was already known to Lociware, the trustees and the beneficiaries, including the employee himself. The court found that his complaints concerning the Trust’s dormant status, trustee appointments and non-payment of dividends largely conveyed known facts and reflected his dissatisfaction that the Trust had not produced the benefits he expected. A disclosure is not protected where the information falls within the employee’s duties, is ordinarily within the employer’s knowledge or is already in the public domain.
Importantly, the court did not require the employee to prove that the alleged impropriety had in fact occurred. The enquiry was whether he had a reasonable basis for believing that the information disclosed showed, or tended to show, impropriety. On the facts, the court found that his allegations amounted to subjective opinions, suspicions, innuendo and grievances, rather than disclosures grounded in information that pointed to the impropriety alleged.
This was particularly significant given the seriousness of some of the allegations, which included fraud, fronting and criminality. Allegations of that gravity require more than mere assertion; there must be a proper factual foundation for the belief relied upon.
Good faith remains central
The court’s assessment also turned on the employee’s own knowledge of the Trust’s circumstances. He was aware of its dormant status and of the difficulties surrounding the appointment of trustees. Against that background, the court found that his communications about the Trust could not have been made in good faith, since he knew its true state, and that the alleged disclosures lacked “any semblance of good faith”.
The judgment is therefore a reminder that an employee’s subjective belief is not the end of the enquiry. In assessing whether a protected disclosure has been made, a court will consider the information available to the employee, the factual basis for the allegations and the circumstances in which the communication was made.
The disclosure must still be linked to the detriment
Section 3 of the PDA protects an employee from an occupational detriment imposed on account of, or partly on account of, having made a protected disclosure. Even where a protected disclosure is established, however, the enquiry does not end there: a causal link between the disclosure and the detriment is required.
Here, the chronology did not establish the necessary causal link. The employee was suspended on 22 February 2021, the day after his email of 21 February 2021, but was exonerated following a disciplinary hearing in March 2021. A further investigation commissioned by Lociware’s board in August 2022 likewise exonerated him. His dismissal came only on 16 November 2022, after a separate disciplinary enquiry into allegations that he had participated in or caused the unlawful downloading, hacking or dissemination of privileged company information.
The court found the attempt to connect the 2022 disciplinary action and dismissal to the February 2021 email to be “far-fetched”, given the time lapse between the two events. The remaining alleged disclosures failed for other reasons. The email to Shell was never brought to Lociware’s attention, and the court could not see how Lociware could dismiss the employee for something of which it was unaware. Lociware’s evidence was that it learnt of the alleged complaint to the Hawks only after the dismissal, and the employee conceded that, if Lociware was unaware of the complaint, he could not have been victimised on that basis. With regard to the correspondence from his attorneys, the employee conceded that the July 2021 letter was not a disclosure, and the court found no nexus between the December 2021 letter, sent on behalf of several beneficiaries, and a dismissal some 11 months later. The purported Hawks affidavit was uncommissioned and unsupported by any evidence that it had been filed. Although a disclosure need not take affidavit form to be protected, the court held that, even if the affidavit were admitted, it revealed nothing materially new tending to establish impropriety.
What this means for employers
The judgment highlights the importance of assessing alleged whistle-blowing carefully, rather than accepting or rejecting the employee’s characterisation at face value.
Employers should consider what information was actually disclosed, what impropriety that information is said to demonstrate, whether there is a reasonable factual basis for the employee’s belief, whether the disclosure was made in accordance with the applicable statutory requirements, and whether there is a credible causal connection between the disclosure and any subsequent occupational detriment.
At the same time, employers should ensure that any disciplinary or other adverse action is supported by a genuine, properly documented reason. This is especially important where an employee has previously raised allegations of wrongdoing that they may later seek to cast as the true reason for the action taken.
Key takeaway
The judgment demonstrates that not every workplace complaint becomes a protected disclosure simply because it is said to be one. The PDA protects qualifying disclosures of information concerning impropriety; it does not transform allegations, suspicions or workplace dissatisfaction into protected whistle-blowing. For employers, the focus should remain on the substance of the disclosure, the basis for the employee’s belief, and whether the alleged disclosure can properly be linked to the detriment complained of.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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