Employers might face situations where witnesses necessary for an arbitration or disciplinary hearing are unavailable because they have left the company or moved abroad. However, what should employers do if a current employee, who is a key witness, refuses to testify?

In certain cases, an employee’s refusal to testify might be warranted if they have legitimate fears or face threats for testifying. Handling such situations can be complex, particularly when their concerns are substantiated. However, if an employee refuses to testify simply because they prefer not to be involved, what options are available to the employer?

Such a scenario occurred in the case of Kaefer Energy Projects (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA59/20) [2021] ZALAC 42; (2022) 43 ILJ 125 (LAC); [2022] 2 BLLR 166 (LAC) (26 October 2021). Here, an employee was dismissed after refusing to testify in a dispute between their employer and a co-worker, simply because they did not want to be involved. The main charge leading to their dismissal was this refusal to testify about their co-worker’s alleged misconduct.

The applicant intervened and escorted one employee out of the office after overhearing a loud argument between two employees, preventing further escalation. Later, when asked to testify at the Commission for Conciliation, Mediation and Arbitration (CCMA), the applicant declined, citing their inability to recall all details of the incident, believing their testimony would not be useful to the employer and fearing they would embarrass themselves if they testified.

After the arbitration award was issued, the employer sought to have it overturned by the Labour Court, which ended up reaching the same conclusion as before. The Labour Court referenced Section 5(3) of the Labour Relations Act, 66 of 1995 (LRA), noting that just as no person should gain advantage for abstaining from participating in proceedings under the Act, likewise, no person should suffer prejudice for refusing to participate. However, the Court also noted that a witness who refuses to testify could be compelled through a subpoena. Ultimately, the Labour Court concurred with the CCMA’s decision, and the employer’s review application was denied.

The employer then referred the matter to the Labour Appeal Court and the Judge’s concluding remarks summed up the entire case; “Imposing a final written warning on an employee who unjustifiably refuses to testify in a disciplinary hearing or at arbitration hearing would be to condone obstructive conduct on the part of such an employee to the employer’s right to enforce disciplinary action against (possible) errant employees, which, clearly, cannot be countenanced.”

The Labour Appeal Court thus found that dismissal was an appropriate sanction in the circumstances. An employee has a duty to act in accordance with what is in the best interests of the business instead of their own.

By Claire Turner

Provincial Manager at Consolidated Employers Organisation (CEO SA