An application by JSE-listed PPC to set aside a subpoena ordering it to provide a copy of a forensic investigation report to a former employee took centre stage in the labour court this week.
Siobhan McCarthy, former group manager of corporate affairs at the cement and lime producer, issued the subpoena to PPC to provide her with a copy of the report together with certain other documents, minutes and recordings of meetings.
McCarthy said the report relates to a complaint she lodged in October/November 2018 against PPC’s then-financial director Tryphosa Ramano.
She said the report may well also cast light on Ramano’s departure from PPC’s employ in October 2019, following which PPC had to restate its financial results for 2018 and 2019 “under Ramano’s watch”.
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The forensic investigation report was prepared by Exactech for PPC’s audit committee.
Attorney Jeremy Crawford, appearing for McCarthy, said the forensic report is relevant to her application to the labour court, following her automatically unfair dismissal effective from November 23, 2018.
McCarthy has lodged a separate high court application for a copy of the forensic report for her defence of a high court defamation case lodged against her by PPC and Ramano.
This defamation case was prompted by the content of statements made by McCarthy in support of her automatically unfair dismissal or alternatively unfair retrenchment case in the labour court.
PPC claims the contents of McCarthy’s statement of claim in the labour court is false and therefore defamatory, which McCarthy has denied.
McCarthy said in an affidavit the report is required for both her automatically unfair dismissal dispute with PPC and the defamation case.
She said that while PPC contends that her dismissal had nothing to do with the report, which was only commissioned after her termination, this is a red herring and irrelevant because the report, among other things, deals with her claim that she was targeted by Ramano and this directly caused her dismissal.
McCarthy said the background to her complaint, which resulted in the forensic investigation report and made it relevant to her labour court case, is that there were media leaks in late August and early September 2017 related to a proposed conditional merger of PPC and AfriSam, funded by Canadian-based Fairfax Investments, and PPC’s potential takeover by Dangote, the cement company owned by Nigerian billionaire Aliko Dangote of Dangote Group.
“This information was confidential and could not be disclosed by the applicant [PPC] per the JSE-listing rules,” she said.
McCarthy said the adverse impact in August/September 2017 of these media leaks on PPC’s business, including trading in its shares being suspended, resulted in then-PPC chair Peter Nelson requesting that she establish the source of these leaks.
“I established that Ramano was the source of the said leaks,” she said.
McCarthy said she made a protected disclosure to Nelson as well as the then-acting CEO Johan Claassen, company secretary Jaco Snyman and Ramano’s personal media consultant Rich Mkhondo that she had knowledge that Ramano was the source of the leaks.
She said Mkhondo admitted that he and Ramano had attended various meetings with journalists prior to the leaks.
“The media leaks not only constituted a breach of JSE rules but also serious misconduct,” she said.
McCarthy provided details in her affidavit of various meetings, communication and exchanges with various PPC managers that followed her protected disclosure up to her dismissal.
She claimed Ramano was hostile to her in executive committee meetings, which culminated in her lodging a grievance on July 5, 2018, because of Ramano’s alleged victimisation and unilateral changes to her terms and conditions of employment.
McCarthy alleged that the decision to terminate her services was instigated by Ramano and that PPC’s human resources executive and CEO simply implemented this wish through “a contrived consultation process”.
McCarthy is seeking her retrospective reinstatement, without loss of benefits, as group manager corporate affairs and maximum remuneration compensation for the automatically unfair dismissal or alternatively unfair retrenchment plus damages as a result of the emotional trauma she was subjected to by PPC.
PPC’s head of group legal and compliance Kevin Ross said in an affidavit that PPC objects to providing the forensic investigation report for a number of reasons.
Ross said the report is irrelevant to the issues in dispute in this matter, has no bearing on McCarthy’s retrenchment, does not deal with whether McCarthy’s complaints against Ramano caused her retrenchment and will not be of any assistance to the court in the determination of the issues that have been raised in this case.
He added that the subpoena was an abuse of the court process because McCarthy is attempting by all means necessary to obtain the forensic investigation report for the high court defamation dispute.
He stressed that Exactech, which prepared the forensic investigation report on PPC’s instructions, said in its covering letter when it submitted the report to PPC: “The report may only be used by yourselves and your appointed legal representatives in the disciplinary/criminal action against the persons implicated herein and may not be used or distributed for any other purpose without our prior written concerns [consent].”
Handing down judgment, Judge Sean Snyman said it constitutes an abuse of process to utilise a subpoena to compel discovery from a party in proceedings and not to utilise the discovery processes applicable to obtain documents.
Snyman said the issue of relevance of the forensic report can only be dealt with in the context of a discovery process pursued through a proper application to compel discovery.
He set aside the subpoena issued to compel PPC to provide McCarthy with a copy of the forensic report. McCarthy was ordered to pay the costs of the application.
The automatically unfair dismissal or alternatively unfair retrenchment case was postponed sine die (indefinitely).