There is no doubt that South African employment law is an area of law that is constantly evolving to improve, in particular, the rights of employees.

One such change came by way of an amendment to section 188A of the Labour Relations Act 66 of 1995 (the LRA) in 2015 to include section 188A(11), which now allows for a matter to be referred to the CCMA for an enquiry by an arbitrator in circumstances where the employee alleges in good faith that the holding of the disciplinary enquiry initiated by the employer contravenes the Protected Disclosures Act 26 of 2000 (the PDA).

Section 188A(11) in essence now ensures that an employee, is not subjected to an occupational detriment in the form of an internal disciplinary hearing, which in likelihood seeks to persecute an employee in respect of a protected disclosure, which an employee made.

Is it a requirement that the employer consent to a pre-dismissal arbitration in terms of section 188A(11)?

The answer to the above question is set out succinctly in Nxele v National Commissioner: Department of Correctional Services & Others (2018) 39 ILJ 1799 (LC) (Nxele) where the court held that where the employee requests that an enquiry by an arbitrator be convened in terms of section 188A(11), an employer is in fact enjoined to [upon the termination of the internal disciplinary proceedings] participate in the enquiry and pay the costs associated with the convening of the enquiry.

The judgment in the Nxele case and the introduction of section 188A(11), aligns with the purposes of the PDA, which affords the employee a remedy in terms of section 4 (1)(a)(b) to approach any court, including the Labour Court, and to institute any other prescribed process [including the CCMA] in order to protect his/her rights.

This is much relief to whistle-blowing employees who would otherwise be prejudiced by the convening of internal disciplinary proceedings as result of them having made a protected disclosure.