Any employer action in retaliation for a protected disclosure is deemed to be unfair, entitling the employee to “full protection” from any form of “occupational detriment”.  Recent cases in the High Court, Labour Court and Labour Appeal Court have highlighted some of the principles involved: -

1. A disciplinary hearing cannot be held if it is in itself a reprisal for a protected disclosure;

2. Any dismissal will be automatically unfair, leading to re-instatement or an award of compensation;

3. Compensation will be awarded, not only for the employee’s monetary loss, but also for any personal injury suffered (embarrassment, humiliation, loss of dignity and reputation etc, etc).  Particularly where there are aggravating factors, the award is likely to be substantial (e.g. R277,000 in the one case);

4. On the other hand, employees need to tread with care here.  An employee is liable to disciplinary action (in the case in question, demotion for one employee, and unpaid suspension for the other) for any disclosure not made in “good faith”, and with a reasonable belief that it is “substantially true”.  There must be “facts upon which reason to believe could be based” – mere speculation and opinion is insufficient. 

It is essential for the disclosure to be a “protected” one, and it can be tricky to determine what is protected, and what isn’t.  Both employers and employees would be wise to seek proper advice before taking any action under this legislation.