Reinstate whistleblower – court orders Eastern Cape health MEC

The health department in the Eastern Cape has been ordered to reinstate a “whistleblower”. She was removed from her job in a district human resources office after she raised the alarm about a colleague attempting to get her niece short-listed for a job.

Eastern Cape Labour Court Judge Zolashe Lallie found that “an occupational detriment” had been committed against Vuyelwa Thelma Tanda. The judge ruled that in terms of the Protected Disclosures Act, Tanda had made a “protected disclosure” when she reported the attempted nepotism to her boss.

The judge ordered that she be compensated with R162 402 and that she must be given back her job.

Tanda was initially employed as a data capturer at the Motherwell Community Health Centre. In January 2014, she was seconded to the human resources department in the district office, where she, and two fellow employees, were responsible for managing recruitment and selection processes. They had to report to the deputy director of human resources management, Charmain Jaggers, who in turn reported to the director, Mzoli Njalo.

In January 2018, the department advertised several administrative clerk posts and received a large number of applicants. Njalo’s wife, Phumla Njalo, who was also employed by the department, chaired the shortlisting panel.

The following day, Tanda’s colleague, Princess Makhulume, “got upset” and questioned why her niece had not been shortlisted.

A few days later Tanda was contacted by Mrs Njalo, who said there had been an oversight in the shortlisting process and instructed her to add the niece’s name to the shortlist.

Tanda refused, saying that HR policies and procedures did not permit her to comply with such an instruction. She explained that the correct procedure was to reconvene the selection panel.

Tanda said she reported the instruction to Jaggers, but she did not want to intervene. Jaggers advised her to call a meeting of the selection panel.

When the meeting was held, the issue remained unresolved, because only Mrs Njalo wanted Makhulume’s niece to be shortlisted.

Tanda again spoke to Jaggers, who again expressed unwillingness to intervene. Ultimately, the selection panel took a final decision not to shortlist Makhulume’s niece.

Shortly after the incident, Tanda said she was reprimanded by Jaggers for attending a memorial service for a nurse and taking files home.

She said Jaggers had given her permission to attend the service – and she denied taking files home.

She was then barred from attending HR staff meetings, removed from the department’s WhatsApp group, and her files were taken away from her.

After Tanda launched a grievance, it was recommended that she be “removed from the HR department”. She left at the end of March 2019 and was given a job as a data capturer at the information section of the district office.

Judge Lallie said Jaggers denied ill-treating or victimising Tanda after she reported Mrs Njalo’s conduct. She said Tanda had become rebellious and failed to perform her duties properly.

Lawyers for the health MEC argued that in terms of the Protected Disclosures Act, a disclosure made in the normal scope of employment could not be protected.

However, Judge Lallie said the argument that Tanda had not made a protected disclosure was not supported by the evidence that Mrs Njalo was “intentionally acting in breach of recruitment procedures” and attempting to give Mkhuluma’s niece an unfair advantage.

“In the circumstances of this case … the report that Mrs Njalo was instructing Tanda to be complicit in nepotism in violation of the recruitment policy constituted a protected disclosure. The report was made in good faith to Jaggers.”

Judge Lallie said it was common cause that Jaggers had refused to intervene in the matter.

Tanda had given a detailed account of how Jaggers victimised her shortly after she made the disclosure. “I cannot accept the version that the relationship between Tanda and Jaggers changed because of Tanda’s misconduct and incompetence. Tanda had worked in the HR office for four years without any complaint,” said the judge.

Judge Lallie said Tanda had been “punished” and that Jaggers had abused her seniority.

“Tanda has proved that solatium (compensation) is due to her as a result of humiliation, hurt and the violation of her right to dignity which she suffered in the hands of Jaggers for making the protected disclosure.”

Judge Lallie ordered compensation equivalent to the pay she would have earned over a period of ten months, at the rate she was earning when she made the protected disclosure, and that she be given back her job, and that the MEC pay her costs.

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