It is not uncommon for employees to be called as witnesses by their employers in cases of disciplinary hearings, arbitrations and even, in some circumstances, Labour Court cases. In some of these cases, the employees are happy to oblige. However, in other cases, employees may refuse to testify. If the employee who refuses to testify is a key witness to a case and ultimately decides not to testify, is there any recourse for the employer?

In the recent Labour Appeal Court case of Kaefer Energy Projects (Pty) Ltd v CCMA & Others (JA59/20) (2021) ZALAC 42, the court had to consider whether an employee can be charged and dismissed for insubordination for refusing to testify against a co-employee on behalf of their employer. The issue in the above case stemmed from a dismissal of an employee, namely Mali, who had an altercation with one Govender. After Mali was dismissed, he challenged his dismissal at the CCMA, and when it came to the arbitration, the employee, Govender, was required to testify on behalf of the employer. The employee firstly indicated that she did not want to testify as she could not recall what had happened and did not see her evidence’s relevance. However, the applicant thereafter told the employer that she remembered the evidence and would testify on their behalf. This was the Friday before the arbitration on Monday. A while later, on Friday afternoon, the employee said she did not want to testify anymore and did not give a reason to the employer, despite the employer making several attempts to ascertain the same.

As a result, the applicant was subsequently dismissed on two (2) charges, one of them being insubordination for refusing to testify. At the CCMA, the Commissioner found that because there was no evidence led to show that the employee deliberately declined to testify to protect the other employee or to conceal evidence, there was no misconduct committed and went on further to state that should the employee have been an important witness, the employer should have subpoenaed the employee.

Dissatisfied with the decision of the CCMA, the employer took the matter to the Labour Court, which drew the same conclusion as the CCMA, albeit for different reasons. The court provided that the employer could not dismiss an employee for not testifying.  A proposition following section 5(3) of the LRA indicates that no person may be advantaged in exchange for not participating in any proceedings in terms of the LRA, and no person may be prejudiced for refusing to participate in any proceedings. The Labour Court further stated that the only way to compel an employee to testify is to issue a subpoena against the employee.

Still aggrieved by the judgment, the employer went on to the Labour Appeal Court contending that there was contractual obligation between an employee and employer whereby the employee owes the employer a duty of good faith, and that refusal to testify amounts to insubordination, as the employee had breached her duty of good faith.

At the Labour Appeal Court, it was held that the employee’s case was that she refused to testify as she did not see the relevance of her testimony and that she could not recall the incident in question. She also noted that she was not called at the disciplinary hearing to be a witness. The Labour Appeal Court outlined that the Commissioner at the CCMA had to consider the following:
(a) The misconduct that the employee was said to have committed – was there a refusal to carry out an instruction, and was an actual instruction given to her.
(b) Whether the instruction was lawful, reasonable, or fair.
(c) Whether the employee was able to carry out the instruction; and
(d) Whether there was a lawful or reasonable excuse for her to refuse to carry out the instruction?

The Labour Appeal Court stated that the Commissioner at the CCMA misconstrued what was required of him and missed the point altogether. The Appeal Court held that the instruction given to the employee was neither unreasonable nor unfair. The employee was merely asked to testify and not told what to say. The employee’s justification for refusing to testify, specifically the relevance of her testimony, raised concerns to the Appeal Court. It was noted that it was not for the employee to decide whether or not her testimony would be relevant.

The employee may raise an excuse for not wanting to testify, provided that it constitutes a valid excuse for the non-compliance. For example, sometimes they are threatened or other pressures on them by co-employees or their community to not testify. These excuses are reasonable and should be brought to the employers’ attention, and it is in these instances a subpoena might be considered. In this case, however, there was no evidence of threats or external pressures that played a role in the employee not testifying. Furthermore, it should be noted that the Labour Appeal Court stated that although litigants have access to tools such as a subpoena, failure to use this tool does not mean that an employee witness can simply refuse an employer’s instruction to testify at a hearing or any other process.

Essentially if there was no reason for the employee not to testify and it was not for her to say whether or not her evidence was relevant, and it was, for this reason, that the Labour Appeal Court found that the decision reached by the Commissioner was not one a reasonable Commissioner could have arrived at. The Labour Appeal Court found that the dismissal of this employee based on insubordination was fair and stated the following:
” The refusal to obey the instruction has to be seen in a serious light. The employee challenged the authority of the employer, and this can have the consequence of hamstringing the employer’s enforcement of discipline in the workplace. An employee is, in my view, obliged to carry out a reasonable instruction given to her/him by the employer. Refusing to do so may amount to insubordination. Depending on the importance of the instruction and the absence of an acceptable excuse for the refusal to carry out the instruction, it can correctly be held to be sufficiently serious to warrant the sanction of dismissal.”

It is very clear from this recent judgment that employees should honour the duty of care towards their employers and that they undertake to testify on behalf of the employer unless exceptional circumstances exist.  On the other hand, employers should approach employees with caution when requesting them to testify at proceedings.

Article by: Shannel Arikum
Dispute Resolution Official – Pretoria