The election whistle-blower, who was booted out of her cleaning job for raising the alarm on possible election fraud during the 2019 General Election, has been given her job back.
Kolobetso was charged for contravening the Public Service Act (PSA) and was later dismissed from her job in June 2021 after going through a disciplinary hearing. She was accused of wilfully disclosing confidential information, contravening Section 27 (3) (i) of the PSA, which bars public servants from wilfully disclosing confidential information where such disclosure had not been authorised by the government or according to any law or court order or was likely to be detrimental to the interests of the employer.
When reading the judgment, Justice Bugalo Maripe ordered that Kolobetso be reinstated to the position held before her dismissal with all benefits and privileges and that she be paid all salary arrears from the date of dismissal to the date of resumption of duty.
“The complainant has made a case for reinstatement and on that basis, the decision to dismiss her lacked an appropriate jurisdictional basis to find a dismissal and also stating that she was found guilty of contravening the general orders was factually incorrect as the dismissal was based on the outcome of the disciplinary proceedings,” he said.
Judge Maripe said the state failed to make a case that at the time the cleaner disclosed the information, she knew or ought to have known that the information would be interpreted to suggest that there was cheating in the elections or that she foresaw the likelihood that the information would cause unrest in the country.
He explained that the accusation was based on events that occurred after the disclosure, the implications of which the applicant might not have foreseen but noted since the state did not make any submissions on the matter he will only focus on the jurisdictional basis under which the employer took the disciplinary hearing.
“The offence of misconduct under the PSA is created with two sections and not the one section the employer used as it is not a stand-alone provision therefore one cannot be accused of violating for example. In my view, it is improper to take disciplinary action against an employee for misconduct without referencing all sections. That is the provision that provides the employer with the jurisdictional authority for action in respect of employee’s misconduct and without that reference, a charge of misconduct will be incomplete or invalid,” Maripe said.
On the state’s submission that in the event the cleaner was reinstated, she deserves no back pay based on the 'no work no pay' principle, Maripe said it was wrong because that principle applied in circumstances where the employee’s failure to work has been brought about by the employee.
He pointed out that being the case of dismissal, the employee’s failure to work could not be blamed on the employee and that she was dismissed unlawfully therefore the no work no pay principle was not applicable.
At the back of the case is that before Kolobetso's terminated employment she was a cleaner and on October 28, 2019, while cleaning the office of the district commissioner, Mooketsi Lesetedi, she went into his office toilet to clean and then found five transparent boxes containing used elections ballots, which later she shared her discovery with Segomotso Mhaladi who is also a public servant.
However, on June 1, 2020, she was charged with contravention of Section 27 (3) (i) of the PSA and subsequently dismissed on June 3, 2021, after a disciplinary hearing.
She was represented by Charles Batsalelwang of Collins Chilisa Consultants while Otlaadisa Kwape represented the state.