29 November 2021 by , and Employment Law Alert

Refusal to testify in an arbitration may result in a fair dismissal

Employees have a duty to comply with the lawful and reasonable instructions of their employer. But would the failure to comply with an instruction to testify in an arbitration before the Commission for Conciliation, Mediation and Arbitration (CCMA) amount to insubordination and warrant dismissal? This is the question which the Labour Appeal Court (LAC) was required to decide in Kaefer Energy Projects (Pty) Ltd v CCMA and Others (LAC) (Case no: JA59/20), a judgment handed down on 26 October 2021.

The employee was dismissed for misconduct following her refusal to testify on behalf of her employer in an unfair dismissal arbitration brought by a former employee, Tebogo Maili. There was no dispute that a heated altercation took place between Maili and the employee's manager, which was overheard by the employee. In response, the employee rushed to her manager's office and escorted Maili out of the office to avoid the situation escalating any further. The altercation resulted in Maili being dismissed. He then referred an unfair dismissal dispute to the CCMA. As the employee was a key witness to the altercation, her manager instructed her to testify in the arbitration proceedings regarding her recollection of the events.

The employee initially refused to testify on the basis that she did not believe that her evidence was relevant and that she could not recall precisely what had been said. In response to her refusal, the employer once again instructed the employee to testify. The employee initially maintained her position that she could not recall what had happened and advised that she did not want to be a witness. The employee was told to take some time and think about the matter and come back to her manager. A few hours later, the employee informed her manager that she recalled everything and that she would testify. Despite this, the employee then changed her mind again and sent a message to her manager informing her manager that she no longer intended to testify. This was on the Friday evening before the arbitration commenced on Monday the following week. The employee failed to respond to calls and messages from her manager and failed to attend the arbitration. 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 held that the employee did not commit misconduct as no evidence was led that she deliberately refused to testify to protect Maili or to conceal evidence. The arbitrator concluded that if the employee was an important witness, the employer should have subpoenaed her.

Labour Court

Dissatisfied with the outcome, the employer instituted review proceedings. The Labour Court agreed with the arbitrator and concluded that the employee could not be dismissed for refusing to testify. While the Labour Court came to the same conclusion as the arbitrator, it did so on different grounds. It held that the employer could not dismiss the employee for refusing to testify and in making this decision relied on section 5(3) of the Labour Relation Act 66 of 1995 (LRA). Section 5(3) provides 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." The court reasoned that the corollary of this section is that no person may be prejudiced for refusing to participate in any proceedings. The Labour Court concluded 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. 

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 (i) the misconduct which the employee was alleged to have committed, (ii) whether the instruction was lawful, reasonable or fair, (iii) whether the employee was in a position to carry out the instruction, and (iv) whether the employee had a lawful or reasonable basis for her refusal to comply with the instruction.

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 "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. Depending on the facts, this may include something like intimidation by other employees or the community, which should be brought to an employer's attention immediately. The court held that these are some of the instances in which 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.

Reasonable instruction

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 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. 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.

When addressing the appropriate sanction, the court considered that an employee's failure to comply with an instruction is serious and constitutes a challenge to the employer's authority. Based on the facts and given the employee's varied position as to whether she recalled the events or not, the court found that the employee's dismissal was fair.

Given that employees frequently play a critical role in testifying against fellow and/or former employees in arbitration proceedings, this case is important authority for the fact that where an employee refuses to testify and has no valid excuse for doing so, this may constitute a dismissible offence.

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