A whistle-blower who raised the alarm about nepotism will be reinstated at a district human resources office in the Eastern Cape after a High Court ruling, and be paid out for the time she was removed from her position.
The Health Department was ordered to reinstate her after it had transferred her for blowing the whistle on 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 Tanda and ruled that, under the Protected Disclosures Act, Tanda had made a “protected disclosure” when she reported the attempted nepotism to her boss. Not only was she to be reinstated, ordered the judge, but she had to be compensated with R162 402, reports GroundUp.
Tanda, initially employed as a data capturer at the Motherwell Community Health Centre, was seconded, in January 2014, to the human resources department in the district office, where she and two colleagues managed the recruitment and selection processes.
They reported to the deputy director of HR, Charmain Jaggers, who in turn reported to the director, Mzoli Njalo.
In January 2018, the department advertised several administrative clerk posts. Njalo’s wife, Phumla Njalo, also employed by the department, chaired the shortlisting panel. The next day, Tanda’s colleague Princess Makhulume “got upset” and asked why her niece had not been shortlisted.
A few days later Tanda was told by Phumla Njalo that there had been an oversight in the shortlisting process and she should add the niece’s name to the shortlist. Tanda refused, saying HR policies and procedures did not permit her to comply with such an instruction, adding that the correct procedure was to reconvene the selection panel.
Tanda said she reported the instruction to Jaggers, who did not want to intervene but advised her to call a meeting of the selection panel. At the meeting, 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 the niece. Shortly afterwards, Tanda said she was reprimanded by Jaggers for attending a memorial service for a nurse and taking home files. She said Jaggers had given her permission to attend the service, and 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 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.
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, 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.”
The judge 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, adding that Tanda had been “punished” and that Jaggers had abused her seniority.
Lallie ordered compensation equivalent to the pay she would have earned over a period of 10 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.
whistleblower
See more from MedicalBrief archives:
The high price medical whistle-blowers have to pay
Concern voiced over Health Ombud’s treatment of whistleblower
Employee transferred following nepotism probe at Red Cross Children’s Hospital
HPCSA says it’s working to stamp out internal corruption
Gauteng Health whistleblower’s assassination was meticulously plotted