A former deputy director-general at the Department of Sport, Arts and Culture (DAC), who was fired after she tried to reveal the identity of a whistle-blower within the National Arts Council (NAC), turned to the Johannesburg Labour Court to get her job back.

Kelebogile Sethibelo was dismissed in her absence in July 2019 after she failed to attend the disciplinary inquiry against her.

Her dismissal followed two allegations of misconduct against her related to attempts to reveal the identity of a whistle-blower and insubordination.

Aggrieved with the dismissal, she referred a dispute to the bargaining council. Following unsuccessful attempts at conciliation, the matter came before an arbitrator, who ruled her dismissal to be fair.

Unhappy with this finding, Sethibelo now turned to the Labour Court. In an investigation conducted by law firm Cliffe Dekker Hofmeyr Inc. at the time, it had emerged that Sethibelo had instructed the CEO of the NAC to investigate and reveal the identity of the person within the NAC who had leaked information about alleged corruption and misadministration within the department to the media.

The arbitrator found that Sethibelo’s actions breached the Protective Disclosures Act and the DAC’s whistleblowing policy, rendering her dismissal substantially fair.

The applicant challenged the findings of the arbitrator on the procedural and substantive fairness of her dismissal.

She contended that the arbitrator failed to apply his mind to the evidence before him, including that she was deprived of a fair opportunity to state her case at the internal disciplinary hearing.

The Labour Court had to assess whether Sethibelo’s email to the NAC’s CEO amounted to an instruction to uncover the identity of the whistle-blower.

Her defence that she was merely overseeing the NAC’s operations was rejected as the email went beyond routine oversight and targeted the whistle-blower’s identity.

Her contention that the whistle-blower was not a member of the DAC was also rejected as the NAC’s staff fell under the DAC’s oversight and thus protected by its whistle-blower policy.

The fact remains that the applicant sought to have the identity of the whistle-blower revealed, rather than have the nature of the allegations investigated, the court stated.

The arbitrator’s finding that the dismissal was substantively fair is thus legally sound, the Labour Court found.

It, however, also found in favour of Sethibelo that her dismissal on the second charge against her – that she unlawfully took leave during her disciplinary hearing – was procedurally unfair.

It was found that while her employer wanted to revoke her leave at the time, this was not formally executed.

Her leave was a contractual right, which could not automatically be revoked by suspension, the court said.

While her dismissal remains in place, the court ordered the department to compensate her to the equivalent of four months’ salary.

zelda.venter@inl.co.za

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