Leave me out of this – Dealing with employees who don’t want to testify

At some point during their employment, employees may be requested by their employer to give evidence at arbitration proceedings or a Labour Court trial. Sometimes, they are reluctant to become involved in these proceedings. The reasons for this are varied, but often boil down to the fact that employees simply do not want to become involved in litigation involving the employer and former employees.

Written By of Cowan-Harper-Madikizela Attorneys

The recent case of Kaefer Energy Projects (Pty) Ltd v CCMA & Others (unreported case, JA59/20, 26 October 2021) dealt with precisely such a situation. In summary, the employee was charged with and found guilty of, amongst other things, refusing to testify at a CCMA arbitration involving her employer and a former employee.

She was required to testify about a heated altercation that occurred between her manager (Govender) and an employee (Maili), in Govender’s office. The employee heard a loud argument and immediately rushed to Govender’s office and escorted Maili out to avoid things getting out of hand. Maili was subsequently dismissed and he referred his dispute to the CCMA, where the employer required the employee to give evidence. 

After the employee was dismissed for refusing to give evidence, the employee also referred a dispute to the CCMA, contending that her dismissal was unfair. The commissioner at the CCMA considered whether the employer could dismiss the employee for refusing to testify and found that there was no evidence to show that the employee had deliberately refused to testify in order to protect Maili or to conceal evidence and, on that basis, found her dismissal to be unfair. The commissioner also found that the employer was free to subpoena the employee if it wished her to give evidence at the CCMA, but that it had failed to do so. 

The employer sought to review this award in the Labour Court, but the Labour Court found that the commissioner’s award was a reasonable one and declined to review it. The Labour Court agreed with the commissioner’s finding that a subpoena could have been used by the employer to compel the employee to testify. 

On appeal before the Labour Appeal Court (LAC), the employer contended that the employee owed a duty of good faith to the employer. The duty of good faith arose from the employee’s contractual obligations towards the employer. To this end, the employer argued that the employee’s refusal to testify at the arbitration amounted to insubordination and a breach of her duty of good faith, particularly since the employee had witnessed the altercation between Govender and Maili.

The employer argued that the employee was required only to testify as to her recollection of events. She was not required to perjure herself or to testify to any other issue. There was no threat of harm to the employee if she testified at the arbitration. 

The employee’s version was that she refused to be a witness because she did not think that her evidence was relevant and did not wish to ‘make a fool of herself’. She claimed that she did not remember what was said between Govender and Maili. The employee contended that her refusal was neither deliberate nor in bad faith and on that basis her dismissal had been unfair. 

The evidence showed that Govender had on more than one occasion instructed the employee to give evidence at the CCMA and on each occasion the employee had indicated that she did not wish to do so as she could not remember the incident clearly. Govender had nevertheless told the employee to think about the incident and, on the Friday before the commencement of the arbitration on Monday, the employee came to see Govender to advise that she remembered everything about the incident. She then relayed her memory of the incident in the presence of Govender and another employee, after being provided with the questions that would be asked of her at the CCMA arbitration.

It was clear that up to close of business on Friday the employee remembered the incident clearly and was willing to testify at the arbitration on Monday. This however changed sometime during Friday evening when the employee advised Govender by way of a text message that she would no longer testify. Govender tried to contact the employee but was unable to do so, and only received a further message from the employee advising her to proceed without the employee. The arbitration went ahead and the employee did not arrive to assist the employer.

The LAC found that the commissioner’s finding that the employee had not committed any misconduct and that the employer should have subpoenaed the employee had missed the point altogether. The LAC found that the employee had been given a clear instruction which was neither unreasonable nor unfair. The employee had been asked to testify, and had not been told what to say but rather to simply recall the events as they transpired.

The LAC found that it was not for the employee to decide what would and would not be relevant at the arbitration. She had been instructed to testify and was required to comply with the instruction. 

The employee could have raised an excuse for not wanting to participate i.e. that she had been threatened, or that other pressures had been brought to bear on her. Doing so may have constituted a valid and acceptable excuse for refusing to participate. There was, however, no evidence of this. 

The LAC also found that any litigant could make use of a subpoena, but the failure to do so cannot constitute a reason for the employee to refuse to assist the employer when the instruction to do so is fair and reasonable. The employee was clearly guilty of the misconduct complained of and that should have been the commissioner’s finding. 

The LAC found that the refusal to obey the instruction was serious. Her refusal may have negatively impacted on the employer’s enforcement of discipline at its workplace. The Court found that imposing a final written warning in these circumstances would effectively condone obstructive conduct on the part of employees. The LAC accordingly found that dismissal was the appropriate sanction in the circumstances. 

The judgment is an important restatement of the obligations owed by an employee to their employer. The duty of good faith is still an important characteristic of our employment law and employers would do well to enforce it.

Neil Coetzer

Neil Coetzer
Head of Employment

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