Witness testimony is one of the primary sources of evidence often relied upon by employers at disciplinary hearings to prove an accused employee guilty of misconduct. Employees can, however, refuse to testify at disciplinary proceedings resulting in an employer being unable to prove its case. The Labour Appeal Court (LAC), in the case of Kaefer Energy Projects (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others, was tasked with determining whether an employer would be justified in taking disciplinary action and dismissing an employee who refused to testify at arbitration proceedings.
In the above-said case, an employee was subjected to disciplinary action and subsequently dismissed from employment after refusing to testify at arbitration proceedings as a key witness on behalf of her employer. The employee had intervened in an altercation between her manager and co-worker (Tebogo Maili). Maili was later dismissed because of the altercation and referred an unfair dismissal case to the CCMA. The employee initially agreed to testify at the arbitration but recanted shortly before the arbitration was due to take place. She also ignored attempts made by her employer to find out her reasons for recanting and did not attend on the day of the arbitration.
The employer instituted disciplinary action against the employee and subsequently dismissed her on charges of insubordination and disclosure of confidential information. The employee challenged her dismissal at the CCMA.
Both the CCMA and the Labour Court found in favour of the employee. The CCMA cited a lack of evidence proving misconduct or intentional refusal by the employee to protect Maili. It also stated that the employer had the option to subpoena the employee to provide evidence at the arbitration of Maili, which it did not do. The Labour Court dismissed the review application by Kaefer Energy Projects, stating that the corollary to Section 5(3) of the LRA is that no person may be prejudiced by refusing to take part in any proceedings in terms of the LRA. Accordingly, the employer could not instruct the employee to go against her will and testify or suffer prejudice in the form of a hearing.
The matter was then appealed to the LAC. The LAC found that regard considering the following was needed to determine whether the employee was guilty of insubordination:
- Misconduct that the employee was said to have committed, being her refusal to carry out an instruction given to her;
- Whether the instruction was lawful, reasonable or fair;
- Whether the employee was able to carry out the instruction; and
- Whether there was a lawful or reasonable excuse for her to refuse to carry out the instruction.
The LAC found that the instruction was reasonable and fair, the employee admitted that she recalled the events giving rise to Maili’s dismissal, and there were no reasonable grounds to merit her refusal. The Court noted that reasonable grounds extended to the threat of harm and intimidation by co-employees to prevent an employee from providing testimony, which was not present in this case. As such, the employee had committed an act of insubordination.
The LAC in CWIU and another v SA Polymer Holdings Pty (Ltd) t/a Megapack defined insubordination as “a willful and serious refusal to obey a lawful and reasonable command, or conduct by the employee which poses a deliberate and serious challenge to the employer’s authority”.
In the circumstances, the employee’s refusal to testify was concluded to be a serious challenge to the employer’s authority and could negatively impact the employer’s ability to enforce discipline in the workplace. The LAC, therefore, concluded dismissal to be the appropriate sanction.
It, therefore, stands to reason that employees may not arbitrarily refuse to provide testimony at disciplinary enquiries or arbitrations as employees owe a duty of good faith to their employers. A failure or refusal to adhere to a lawful, fair and reasonable instruction to provide testimony when called upon to do so may well result in disciplinary action for insubordination and possible dismissal.
Want to know more about disciplinary proceedings? Do not hesitate to contact your nearest SEESA Labour legal advisor. Alternatively, “SMS” the word “SEESA” to 45776 and we will contact you.
About the Author
Candice Govender started her career at SEESA in 2018 and is currently a Labour Legal Advisor at SEESA’s Durban office. She is an admitted attorney of the High Court of South Africa since 2016. Candice attained her LLB degree in 2014 and her LLM degree in 2015 from the University of KwaZulu-Natal.
Resources:
- Kaefer Energy Projects (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA59/20) [2021] ZALAC 42;
- Labour Relations Act 66 of 1995;
- CWIU and Another v S A Polymer Holdings (Pty) Ltd t/a Megapack (1996) 8 BLLR 978 (LAC);
- https://www.ccma.org.za/Media/Labour-Law-Blog/ArticleID/1634/Can-an-employee-be-dismissed-for-refusing-to-testify-in-a-CCMA-arbitration