With the current scourge of corruption and other forms of unlawful conduct, it has become more important than ever to ensure the protection of whistleblowers. From a workplace perspective, the Protected Disclosures Act, 2000 (“PDA”) protects whistleblowers and provides that: ‘No employee may be subjected to any occupational detriment by his or her employer on account, or partly on account, of having made a protected disclosure’.
Occupational detriment includes the taking of disciplinary action against an employee for having made a protected disclosure.
The Labour Relations Act, 1995 (“LRA”) supplements the PDA protections through, amongst other things, section 188A(11). Section 188A of the LRA provides for pre-dismissal arbitration – a process in terms of which a CCMA commissioner is appointed to arbitrate a dispute on whether a dismissal will be fair. In effect, the arbitration process takes the place of an employer’s internal disciplinary or incapacity procedure.
The pre-dismissal arbitration will typically be invoked when an employee faces incapacity proceedings or disciplinary action for some form of misconduct and the employee alleges, in good faith, that the institution of the incapacity or disciplinary proceedings, as the case may be, is a form of retaliation for their having made a protected disclosure, as contemplated in the PDA.
As with anything else in life, some opportunistic employees have found a way to abuse a system designed for the protection of whistleblowers. A troubling pattern is emerging in South African workplaces: employees facing serious disciplinary charges are hijacking the CCMA pre-dismissal arbitration process – not to vindicate their rights, but to stall, disrupt and sometimes avoid accountability for their own misconduct.
The playbook is remarkably consistent. An employee who is suspended pending an investigation, or is charged with misconduct, lodges a grievance or complaint (often relating to the conduct of the person who initiated the charges), recharacterises it as a "protected disclosure" under the PDA, and then refers a dispute to the CCMA under section 188A(11) of the LRA, alleging that the disciplinary proceedings are retaliatory. The CCMA proceedings are outside the employer’s control and, most importantly, are subject to the availability of commissioners.
The result is that legitimate disciplinary processes are delayed, and the employee gains time and leverage to manipulate the timing of their exit.
The question of whether the mere referral of a section 188A(11) dispute to the CCMA automatically substitutes the internal disciplinary proceedings with pre-dismissal arbitration proceedings at the CCMA has been the subject of much debate before the Labour Court. The position was recently clarified by the Labour Appeal Court (“LAC”) in Industrial Development Corporation of South Africa v Modika and Others (2026) 47 ILJ 1840 (LAC). The employee was placed on precautionary suspension in August 2025 following allegations that he had made malicious and slanderous remarks, and disciplinary charges were subsequently levelled against him. The employee lodged a complaint against his superior, which he labelled a “protected disclosure” under the PDA. He subsequently requested the CCMA to conduct a section 188A(11) inquiry by an arbitrator.
When the employer rejected this and scheduled the disciplinary hearing, he brought an urgent application in the Labour Court seeking an interdict restraining the employer from proceeding. The Labour Court granted an interdict restraining the disciplinary hearing pending a decision by the CCMA-appointed arbitrator. The employer appealed to the LAC, which upheld the appeal, finding that the Labour Court had misapplied section 188A(11) by usurping the CCMA's statutory power to determine jurisdiction under that section.
The LAC finally settled the status and consequences of an employee’s request for the CCMA to institute a pre-dismissal hearing in terms of section 188A(11). It approved prior Labour Court judgments and held that:
“The Labour Court in Mamodupi v Property Practitioners Regulatory Authority and Another, which judgment the Labour Court herein supposedly followed, held that before the jurisdictional requirements are met, the CCMA or bargaining council is not empowered to accept a section 188A(11) referral. It also held that what terminates the internal hearing is the acceptance of the referral after the jurisdictional requirements are met. Differently put, where the jurisdictional requirements are met, the internal enquiry terminates automatically without a need for an interdict.”
The LAC confirmed that, for the CCMA to accept the employee’s request for a pre-dismissal arbitration, the following jurisdictional facts, as established in Mamodupi, must exist:
- the employee must have made a protected disclosure;
- the employer must have subjected the employee, who already made a protected disclosure, to an occupational detriment; and
- once so subjected, the employee must honestly and sincerely allege that a causal connection exists between the protected disclosure and the occupational detriment; in other words, the employer’s response must have been because of the protected disclosure.
Accordingly, the mere referral of a section 188A(11) dispute to the CCMA does not automatically substitute the internal disciplinary proceedings with pre-dismissal arbitration proceedings at the CCMA. The CCMA is required to satisfy itself that the jurisdictional requirements for section 188A(11) are met before accepting the referral.
Key takeaway for HR practitioners: A section 188A(11) referral is not an automatic stay of your internal disciplinary process. It is a dispute referral with specific jurisdictional requirements that must be satisfied before the CCMA has authority to intervene.
Implementation steps:
- Do not assume you must stop. A referral alone does not compel the employer to suspend its internal process. Assess the merits before conceding.
- Each dispute must be handled on its merits and independently. Do not conflate a grievance with a disciplinary matter, even where they involve the same employee.
- Interrogate the "protected disclosure" claim. Ask:
(a) Was there actually a disclosure of information about an employer's unlawful or irregular conduct, as required by the PDA?
(b) Is there a causal connection between the disclosure and the disciplinary action, or was the disciplinary process initiated on independent grounds? If the disciplinary investigation or charges pre-date or are contemporaneous with the alleged disclosure, this strongly undermines the claim that the discipline is retaliatory.
- Challenge jurisdiction at the CCMA if warranted. If the jurisdictional facts for a section 188A(11) referral are absent, the employer should challenge the CCMA’s acceptance of the referral. The CCMA commissioner must be satisfied that the referral meets the statutory requirements before assuming jurisdiction.
- Document the basis for proceeding. If the assessment supports continuing with the internal hearing, record in writing the factual and legal basis for your decision. This contemporaneous record will be critical if the employee later challenges the employer's conduct.
- Obtain legal advice early. Where the jurisdictional position is unclear, obtain legal advice before deciding whether to proceed with or pause the internal hearing.
