Labour Court dismisses PPC appeal against order to release forensic report

JSE-listed cement and building materials producer PPC is considering its legal options after the dismissal of its application for leave to appeal a judgment, ordering it to provide a former employee with a forensic investigation report containing sensitive company information.

The report investigated the leaking of sensitive information about a proposed merger in 2017 between PPC and competitor AfriSam.

The Labour Court in February 2022 ordered PPC to provide its former group manager corporate affairs Siobhan McCarthy with a copy of the forensic report and several other documents.

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McCarthy is involved in a labour dispute with PPC.

She claims in court documents that the proximate cause of her dismissal was PPC’s alleged retaliation against her for:

• Her alleged protected disclosure that it was former PPC financial director Tryphosa Ramano who leaked the information about the proposed merger to Bloomberg; and
• The unfair labour practice dispute that she referred to the Commission for Conciliation, Mediation and Arbitration (CCMA).

PPC claims the report is not relevant to the issues in dispute, because the veracity of McCarthy’s alleged protected disclosure “is not a relevant issue for consideration by the trial court”.

The company further denies that McCarthy was dismissed for making an alleged protective disclosure.

‘Protected disclosure’ 

McCarthy contended in her application to compel PPC to provide her with a copy of the report and other documents, that during approximately August 2017, she met with the chair of PPC’s board of directors to inform him that she was aware of the identity of a person leaking confidential information to the media regarding merger talks between PPC and AfriSam.

She said she subsequently also informed PPC’s then-CEO Johan Claassen and then-company secretary Jaco Snyman that Ramano was the source of the leak.

McCarthy claimed that by reporting this information in the manner that she did, she made a “protected disclosure” as contemplated under the Protected Disclosures Act (PDA).

McCarthy further claimed that she informed Ramano that the information she (Ramano) had provided to the media was in contravention of the JSE listing requirements and the Takeover Regulation Panel’s requirements.

She claimed Ramano responded that she had confirmed with her lawyer that she had not contravened any regulations, and said Ramano did not deny having provided the information to the media.

After Bloomberg published two articles on the merger, which then delayed the merger discussions between PPC and AfriSam, the JSE responded by suspending PPC shares from trading due to sensitive information having been published in contravention of JSE listing requirements.

PPC announced in October 2019 that Romano would step down from her role as chief financial officer on 31 October 2019 but would take on a consultancy role with PPC to ensure continuity.

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Demotion followed by dismissal

McCarthy was initially demoted.

The CCMA ruled in March 2019 that she had been subjected to an unfair demotion at PPC and she was awarded two months’ compensation.

PPC dismissed McCarthy in November 2018. She subsequently lodged a Labour Court application to have her dismissal declared automatically unfair in terms of the Labour Relations Act (LRA).

McCarthy successfully applied to the Labour Court for an order to compel PPC to provide her with the forensic investigation report compiled by Exactech on behalf of PPC, and a number of other documents.

That case was heard in July 2021, with the judgment released earlier this year.

PPC then applied to the Labour Court for leave to appeal.

Appeal judgment

In a judgment handed down last week, Judge AJ Searle dismissed PPC’s application and said there is a possibility that the contents of the report may either directly or indirectly further McCarthy’s case or damage PPC’s case.

“That possibility alone is sufficient. The report is therefore relevant to the determination of the … issue in dispute,” he said.

Searle added that he was also not persuaded that there are reasonable prospects that another court will come to a different conclusion regarding the alleged privileged status of the witness statements annexed to the forensic report.

PPC said on Tuesday that it is aware of the judgment and is still considering its available legal options.

The other documents PPC was previously ordered to provide to McCarthy were:

• A list of all the PPC employees it contemplated retrenching at the time McCarthy was retrenched.
• Written proof of the 60 or more employees PPC contemplated retrenching, including a list of their positions, and all the Section 189 LRA notices issued to the employees.
• A list of the 17 employees whose employment was allegedly terminated by PPC for operational requirements, including the date of termination and their positions.

Searle said PPC contends that these documents are not relevant because they do not demonstrate whether or not PPC “contemplated” retrenching a number of employees that would trigger the application of Section 189A of the LRA.

Key issue

Searle added that one of the primary issues in dispute between the parties is however whether McCarthy was dismissed by PPC in a large-scale retrenchment exercise in terms of Section 189A of the LRA.

“If so, the applicant [McCarthy] may not challenge the procedural fairness of her dismissal. There is no dispute that the documents … exist.

“There can also be no doubt that the contents of these documents may corroborate the applicant’s contention that she was not dismissed pursuant to a large-scale retrenchment exercise.

“By the same token, the documents may also show that [McCarthy] was dismissed pursuant to a large-scale retrenchment exercise,” said Searle.

“The documents are therefore relevant and they should be produced.

“There is no basis for [PPC] to deprive [McCarthy] – or the trial court – of this evidence,”