PPC has lost its application for leave to appeal against a labour court ruling that it hand over a top-secret forensic report, which its former head of corporate affairs alleges contains details of who is responsible for leaking market-sensitive information to the media in 2017.
The cement maker applied for leave to appeal against a February labour court ruling that it hand over a forensic investigative report to Siobhan McCarthy, PPC’s former head of corporate affairs, which relates to a protected disclosure she made against former CFO Tryphosa Ramano. McCarthy has been embroiled in several legal disputes with PPC ever since the company dismissed her in November 2018 in a process she argues was initiated in retaliation for blowing the whistle on Ramano, who she has alleged was behind the reported media leaks.
“Having holistically assessed all the grounds of appeal, I am not satisfied that there are reasonable prospects that another court would arrive at a decision different to the one reached by this court,” acting labour court judge Searle said in a ruling handed down electronically on August 31. “It follows that the application stands to be dismissed. I again see no reason, in law or fairness, why costs should not follow the result.”
The February ruling ordering PPC to hand over the forensic report to McCarthy relates to an ongoing unfair dismissal case against the company that she originally won at the Commission for Conciliation, Mediation and Arbitration (CCMA) but which later ended up in the labour court.
As part of her labour dispute, McCarthy requested that PPC be ordered to hand over the forensic report as she argues it will shed light on whether Ramano was behind the alleged media leaks over a proposed merger with rival AfriSam, while also bolstering her claim that she was dismissed in retaliation for making protected disclosures on the issue.
“There is a possibility that the contents of the report may either directly or indirectly further the applicant’s [McCarthy] case or damage the respondent’s [PPC] case,” Searle wrote in the August judgment.
“The report is therefore relevant to the determination of the above issue in dispute. The documents are relevant and there was no basis for the respondent [PPC] to refuse to produce them.”
In making the ruling Searle said the threshold for granting leave to appeal is high and the party seeking such recourse must show that their application would have reasonable prospects of success.
“It must be shown that another court ‘will’, not ‘might’, differ from the court whose judgment is sought to be appealed against,” Searle wrote. “When it comes to labour court matters, another pivotal consideration is the imperative that labour disputes must be expeditiously resolved.”
McCarthy also requested that PPC be ordered to hand over a list of all the employees the company intended to retrench at the time of her dismissal. One of the primary issues in the unfair dismissal dispute between McCarthy and PPC was whether she was indeed dismissed as part of a large-scale retrenchment in terms of section 189A of the Labour Relations Act, or whether the dismissal was in retaliation for her protected disclosures.
“There can also be no doubt that the contents of these documents may corroborate the applicant’s contention that she was not dismissed pursuant to a large-scale retrenchment exercise,” wrote Searle. “By the same token, the documents may also show that the applicant was dismissed pursuant to a large-scale retrenchment exercise. The documents are therefore relevant and they should be produced.”
PPC responded to the February labour court ruling by exercising its right to apply for leave to appeal later that month on the basis that the forensic report, which was prepared by digital forensics company Exactech, was irrelevant to McCarthy’s labour dispute.
Both PPC and Ramano have repeatedly stated that McCarthy’s allegations are false and are jointly suing her for defamation in a separate case that was originally lodged in May 2019. That matter is still ongoing.
Ramano parted ways with PPC on November 1 2019 after eight years with the company.
“PPC is aware of the judgment regarding its application for leave to appeal and is still considering its legal options available,” the cement maker said in response to questions from Business Day.
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