“For the dead and the living, we must bear witness.” – Elie Wiesel
As a point of departure, it must be established that employees bear a duty of good faith towards their employer, and further, employees have a duty to comply with the lawful and reasonable instructions of their employer.
With the above in mind, sometimes an employer has the need for their employees to testify during Arbitration proceedings, in order to strengthen their case; however not all employees are willing to abide by the employer’s request to do so, for a number of reasons, which brings one to the question: Would the failure to comply with an instruction to testify in an arbitration at the DRC or CCMA amount to insubordination and warrant dismissal?
In the matter of NUMSA and Another v Metal And Engineering Industries Bargaining Council (MEIBC) and Others (D469/14)  ZALCD 16 the Labour Court held that the dismissal of the employee was substantively fair, because the employee refused, to testify at an arbitration proceedings, (after having been subpoenaed), against other employees who were charged with serious misconduct during a strike.
On 26 October 2021, however, the Labour Appeal Court (LAC), in the matter of Kaefer Energy Projects (Pty) Ltd v CCMA and Others (LAC) (Case no: JA59/20), found the dismissal of an employee to be substantively fair for refusing to comply with a reasonable and lawful instruction to testify on behalf of the company, against another employee (Tebogo Maili) in arbitration proceedings relating to unfair dismissal. The LAC in contradiction to the CCMA and Labour Court (LC) found that the need to subpoena the employee is not necessary, because an employer should reasonably expect an employee to adhere to the instruction given by an employer, unless the employee can show valid reason for refusing the instruction.
The reasons put forward by the LAC, to justify a refusal of the instruction, would relate to aspects such victimization, intimidation by other employees or the community, which should be brought to an employer’s attention immediately.
The facts and events transpired as follows, Maili and the employer had a heated altercation, and the employee witnessed the incident. Maili was subsequently dismissed and referred an unfair dismissal dispute. The matter was referred for arbitration and the employee was requested to testify in support of the employer in the arbitration proceedings, as a key witness to the incident that took place.
The employee initially refused, stating her evidence would not be relevant, alleging she could not recall what was said, in response to her refusal, the employer once again instructed the employee to testify, who maintained that she could not recall the events. She was given time to think about her decision, and changed her mind confirming that she recalled the events and would testify. The employee then later sent a message informing her manager that she no longer intended to testify (the Friday before the arbitration on the Monday, leaving the employer no time to secure alternative arrangements). As a result of her refusal, the employee was disciplined and dismissed. She then referred an unfair dismissal dispute to the CCMA.
When addressing the employee’s refusal to testify, the arbitrator at the CCMA found that the employee had not commit misconduct, as no evidence was led that she deliberately refused to testify in order to protect Maili or to conceal evidence. The arbitrator concluded that if the employee was such an important witness, the employer should have subpoenaed her.
The Labour Court agreed with the arbitrator, concluding that a witness who refuses to testify may be compelled to do so by means of a subpoena; and that an employer’s contractual power does not extend to instructing an employee to testify against their will; thereby the employee could not be dismissed for refusing to testify, on the grounds section 5(3) of the Labour Relation Act 66 of 1995 (LRA).
Section 5 of the LRA provides for the Protection of Employees and Persons Seeking Employment, section 5(3) provides further that “no person may advantage, or promise to advantage, an employee or a person seeking employment in exchange for that person not exercising any right conferred by this Act or not participating in any proceedings in terms of this Act.”
In respect of the above provisions the court held that the effect of this section is that no person may be prejudiced for refusing to participate in any proceedings.
On appeal, the employer argued that the employee breached her duty of good faith and that her refusal to testify amounted to insubordination.
The LAC held that the arbitrator was required to consider:
When considering the evidence placed before the arbitrator, the LAC took into account the fact that when the employee changed her mind and agreed to testify, she acknowledged that she recalled the events and was in a position to testify. The court held that the arbitrator had “missed the point altogether”.
The employee was given a reasonable and fair instruction, she was not coached or told what to say and was merely requested to testify as to her recollection of what was said during the altercation.
The court found that “notwithstanding her periodic amnesia”, the employee could at the very least have testified about there being an altercation in which she intervened.
The employee’s justification for her refusal to testify was that she could not remember everything that happened, that her evidence would be of no use to the employer and that she would make a fool of herself if she testified. In considering this justification for her refusal to testify, the court held that it was not for the employee to determine whether her evidence was relevant. She was instructed to testify and had a duty to comply with the instruction.
The employee could have refused the instruction, provided that her reasons for doing so were valid and acceptable; and if the employee had valid and reasonable reasons for refusing to testify, a subpoena may be pursued as well as the implementation of measures to protect the employee. However, no such reasons were relied upon by the employee in this case.
The LAC noted that both the arbitrator and the Labour Court placed significant reliance on the issuing of a subpoena in circumstances where an employee refused to testify.
In contrast, the LAC held that the fact that an employer who does not issue a subpoena does not mean that an employee cannot be disciplined for refusing to carry out the instruction, where the instruction is reasonable. As such, the LAC concluded that in the absence of a valid and reasonable excuse for failing to comply with the instruction, the employee was guilty of misconduct.
The LAC held further, that an employee’s failure to comply with an instruction is serious and constitutes a challenge to the employer’s authority. Furthermore, the court found that based on the facts, given the employee’s inability to decide as to whether she recalled the events or not, the court found that the employee’s dismissal was fair.
Employees would unreasonably refuse to testify against fellow and/or former employees in arbitration proceedings, without a valid excuse for doing so, may find themselves facing severe disciplinary action and even dismissal.
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(Article by Wessel Brits – Edited by Nichole Turner)
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