Can you take steps against an employee who refuses to testify?

Often when employers are confronted with serious misconduct by an employee, a vital part of the disciplinary process is to have other employees testify about the misconduct where they were eye witnesses and/or have knowledge of the misconduct committed. But what happens when an employee refuses to testify against another employee?

The Labour Appeal Court recently had to consider whether an employee’s failure or their refusal of an employer’s instruction to testify in CCMA arbitration proceedings came down to insubordination and warranted dismissal as a sanction.

In Kaefer Energy Projects (Pty) Ltd v CCMA and others an employee was instructed to testify at an arbitration hearing about an incident which took place in the office, based on her recollection of the relevant events.

There was no threat of harm or risk of recrimination if the employee testified at the arbitration. Thus, the court had to determine whether her refusal to come forward could be regarded as an act of insubordination. Insubordination can be defined as refusing to obey an employer’s instructions, provided such instruction is reasonable and lawful.

In this particular case, the employee was dismissed for her refusal to testify about a heated argument that took place between her manager and a fellow employee/co-worker. The employee had overheard the argument between her manager and a co-worker. She then rushed to her manager’s office to escort her co-worker out of the office and to prevent the situation from escalating.

Because of the altercation with the manager, the co-worker was dismissed following an internal disciplinary hearing where she had not been called to testify. The co-worker referred an unfair dismissal dispute to the CCMA and as a result, the employer requested the employee to testify at the CCMA. A few days before the arbitration hearing at the CCMA, the employee went back on her initial agreement to testify at the arbitration hearing by claiming that she could no longer recall what had happened on the day of the altercation at the office and did not want to make a fool of herself.

The employer then dismissed the employee because of her refusal to adhere to an instruction to testify at the arbitration hearing. Aggrieved by the dismissal, the employee referred a dispute for unfair dismissal to the CCMA.

The CCMA Commissioner found that the employee had not committed any misconduct by refusing to testify as there was no evidence to show that the employee deliberately refused to testify in order to protect her co-worker or to conceal evidence. If the employee was an important witness, the employer should have subpoenaed her.

The Labour Court arrived at the same conclusion as the arbitrator that considered the matter at the CCMA, albeit for different reasons, and also found that no person may be prejudiced for refusing to participate in any proceedings in terms of the Labour Relations Act 66 of 1995 (“the LRA”) as set out in section 5(3) of the LRA.

The employer finally approached the Labour Appeal Court (LAC) as it was dissatisfied with the outcome of the CCMA and Labour Court cases. The employer contended that the employee owed it a duty of good faith stemming from her contractual obligations and the refusal to testify amounted to insubordination. The LAC held that the arbitrator had missed the point and there was no justifiable reason for the employee to refuse to testify. In accordingly assessing whether there was insubordination, the LAC held that the following factors had to be considered:

1.    The misconduct that the employee was said to have committed, namely her refusal to carry out   an instruction given to her;
2.    Whether the instruction was lawful, reasonable or fair;
3.    Whether the employee was in a position to carry out the instruction; and
4.    Whether there was a lawful or reasonable excuse for her to refuse to carry out the instruction.

In considering the above, the LAC held that the employee was given a clear instruction which was neither unreasonable nor unfair. She was asked to testify but not told what to say although she was asked to try and remember what had been said. There was also no threat of harm or risk of recrimination. Accordingly, the LAC found that the employee was guilty of insubordination as the refusal to obey an instruction has to be seen in a serious light and dismissal was warranted.  

What this LAC judgment confirms is that there are grounds where an employer can require an employee to testify, or instead face the risk of being insubordinate and potentially being dismissed. That said, as always the facts of each situation differs and an employer would be wise to try and understand the basis for an employee’s refusal to testify and whether there is a valid impediment or excuse for the employee refusing to testify, before it elects to take disciplinary action against such an employee. If in doubt, make contact with a labour specialist to help assess the merits of your situation correctly.

Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy has been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s).

April 13, 2022
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