DISMISSAL: BREACH OF CONFIDENTIALITY AGREEMENT
In the matter of Jacobs v KwaZulu-Natal Treasury (2022) 43 ILJ 1286 (LAC), Ms. Jacobs, during 2009, formed part of a selection committee tasked with recommending a candidate for a position in the Department of Community Safety & Liaison. A recommendation was made by the committee, however, when Ms Jacobs was approached to sign the minutes of the meeting, the minutes reflected that a different candidate had been recommended as the preferred candidate, i.e. the minutes were amended and did not reflect what had transpired during the meeting.
Ms. Jacobs thus refused to sign the minutes, only to be advised by the chairperson of the committee that it was her (the chairperson’s) prerogative to change the minutes. It was only after Ms. Jacobs’ job security was threatened further by her refusal to sign the amended minutes, that she elected to sign the amended minutes.
During 2015, Ms. Jacobs was called to give evidence relating to the selection criteria in arbitration proceedings between the department and a different employee, and in the affidavit that Ms. Jacobs deposed to, Ms. Jacobs referenced the fact that the minutes of the selection committee were amended and did not accurately reflect what had happened during the deliberations regarding a suitable candidate.
Ms. Jacobs, during 2016, was charged with disclosure of confidential information without authorisation in breach of a confidentiality agreement, and the submission of a false statement, amongst others, and after being found guilty, Ms. Jacobs was dismissed.
The arbitrator, at the bargaining council, held that Ms. Jacobs deposed to an affidavit that was untrue, and that she had lied and the dismissal was upheld, notwithstanding Ms. Jacobs’ clean record and the fact that she had 21 years’ service with the department.
The arbitration award was taken on review at the Labour Court, however, the arbitration award was upheld.
On appeal, the Labour Appeal Court’s view was that, at the heart of this matter was:
- Whether an employer can invoke a confidentiality agreement to conceal wrongdoings in a workplace; and
- Whether an employee who had signed a confidentiality agreement required permission from their employer to reveal wrongdoings in the workplace, and more particularly during legal proceedings.
The evidence that the minutes had been amended was not in dispute and was corroborated by a witness of the employer.
It was accordingly held that, in light of the fact that the minutes had been amended, and that the counsel for the employer conceded same, it was evident that the arbitration award was one which a decision maker in the position of the arbitrator could not have reasonably made.
The argument brought forward by the employer that the full record of the arbitration proceedings was not before the court, and thus, that there was no evidence to substantiate that Ms. Jacobs’ affidavit was truthful, was misplaced, according to the court, owing to the fact that:
- It was common cause that the minutes had been amended, and Ms. Jacobs did not have to prove this point.
- The submissions made by Ms. Jacobs were admitted by the employer.
The Labour Appeal Court held the view that it would not be in the interests of justice if the court were to find in favour of the employer, and that an employer could not invoke a confidentiality agreement to conceal wrongdoings in a workplace, and accordingly, Ms. Jacobs did not need the authorisation from the employer to reveal wrongdoings in the workplace, if required to do so during legal proceedings.
The fact that it was common cause that the minutes had been amended meant that the affidavit deposed to by Ms. Jacobs was true, and the court found that the tendering of the ‘confidential’ information during arbitration proceedings did not breach the confidentiality agreement.
The appeal was upheld, and Ms. Jacobs was awarded retrospective re-instatement.