May an employer invoke a confidential agreement to conceal wrongdoings in the workplace?
In the matter of Natasha D. Jacobs vs KwaZulu-Natal Treasury [2021] ZALAC 50 (9 December 2021), the labour appeal court answered the above question in the negative. The court found that a confidentiality agreement cannot be used to conceal the wrongdoings of the employer.
In the above case, Ms. Jacobs, in 2009 whilst in the employ of the KZN Department of Community Safety and Liaison, was chosen to be a member of a selection panel of the Department; the panel was tasked with recommending a candidate for the post of Assistant Manager Assets and Logistics.
As a panel member, Ms. Jacobs signed a disclosure and confidentiality agreement; whereby she undertook to ‘keep confidential and not disclose or discuss with any person apart from the panel members and the human resources representative, in any direct or indirect manner, any matters raised in any part of the shortlisting/ interviews or any related matters not mentioned therein.’
At the conclusion of the selection process two candidates, Ms. Van der Merwe and Ms. Jamile had performed well and it was recommended that Ms. Van der Merwe be appointed as she had scored higher in an earlier mandatory test.
A few weeks thereafter Ms. Jacobs was requested to sign the minutes of the selection panel. The minutes, however, had been changed to say Ms. Jamile was the recommended candidate. Ms. Jacobs queried this amendment but was informed that she had to sign the minutes as is, Ms. Jacobs reluctantly signed the minutes despite this amendment.
In 2015 already in the employ of the KZN Treasury, Ms. Jacobs was requested to give evidence relating to the 2009 selection panel. Ms. Jacobs deposed to an affidavit detailing the selection process and the amendment made to the minutes.
A year later, Ms. Jacobs was charged with disclosing confidential information without authorization by deposing to the affidavit and disclosing what had transpired with the selection panel and submitting a false statement in response to allegations of misconduct. In the disciplinary inquiry, Ms. Jacobs was found guilty of both charges and dismissed.
Arbitration Proceedings
Ms. Jacobs referred her dismissal to arbitration, where she alleged that her dismissal was unfair, as the affidavit had been submitted for a lawful purpose and she claimed that if “she had made a false statement there could not have been a breach of confidentiality.” The employer claimed that the affidavit was false and injurious to the department.
The arbitrator found that indeed the affidavit was not true and Ms. Jacobs had failed to obtain permission before disposing to such therefore the dismissal was found to be both procedurally and substantively fair.
Review proceedings
Ms. Jacobs sought to review the arbitration award and have it set aside; the main issue was whether the affidavit in question was false. Ms. Jacobs had failed to include a record of all the evidence led at the arbitration therefore the court declined to interfere with the arbitrator’s findings; the arbitration award was upheld.
Appeal Proceedings
The appeal court found that the main issue to be determined and will consequently affect the outcome of the appeal is whether Ms. Jacobs did indeed submit a false statement when she deposed to the affidavit alleging that the minutes of the selection panel was changed.
The court found through the evidence led at the appeal; that it was common cause that the minutes had been changed and this was also conceded by the employer. The employer’s version of there being an agreement to changing the minutes, was found to be untrue. The court then held that if this was the evidence then the decision of the arbitrator is not one a reasonable decision-maker could have made.
The court held that Ms. Jacobs had not breached the confidentiality agreement when she deposed to the affidavit disclosing the irregularities and/or dishonesty committed by the members of the panel. The court further held that ‘an employer may not invoke a confidential agreement to conceal wrongdoings in the workplace and an employee who has signed a confidentiality agreement does not require the permission of his or her employer to reveal wrongdoings in the workplace if required to do so in legal proceedings. If permission is to be obtained first any dishonest conduct will never see the light of day.’
The Appeal was subsequently upheld and reinstatement with retrospective effect was ordered.
Contributor: Noluthando Dlamini
Email: noluthando@atmd.co.za
Tel: +2733 815 1550
