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24 Dec 2021
BY Peter le Roux

Compelling employees to give evidence in arbitration proceedings

Can an employer discipline an employee who refuses to give evidence in support of the employer's case at a CCMA arbitration where the employer is defending an unfair dismissal claim? The Labour Appeal Court considered this question in its recent decision in Kaefer Energy Products v Commission for Conciliation, Mediation and Arbitration and others.

The employee in this matter witnessed an altercation between two co-employees and intervened to prevent the incident "getting out of hand". One of the employees party to the altercation, a Mr Maili, was dismissed for his participation in the incident. He referred an unfair dismissal dispute to the CCMA. The employee who witnessed the altercation was told that she would have to give evidence in support of the employer's case at the arbitration. After initially refusing to do so, she agreed to testify. However, shortly before the arbitration commenced, she changed her mind again and refused to testify.

This led to her being subjected to a disciplinary enquiry and being dismissed. She referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration ("CCMA"). The commissioner found that she had been unfairly dismissed. He argued that, because there was no evidence to show that the employee deliberately refused to testify so as to protect Maili or to conceal evidence, she had not committed any act of misconduct. There was also doubt about the importance of the evidence she would have given at Maili's arbitration and she had not acted in bad faith. The commissioner added that, if the employer regarded her evidence as important, she could have been subpoenaed to give evidence. On review, the Labour Court upheld the commissioner's decision, albeit on a different ground.

On appeal, the Labour Appeal Court ("LAC") relied on common law contract principles to find that the dismissal had been fair. It found that the employee had been given a clear and reasonable instruction to testify. She had not been told what she should say when giving evidence. The LAC also stated that it is not for the employee to decide whether the evidence to be given would be relevant.

The Court accepted that in certain circumstances an employee may have a valid excuse for not complying with the instruction. The Court said the following -

"[23]…She had been instructed to testify and she had a duty to comply with that instruction. That is an obligation that an employee has. The employee may however raise an excuse for not wanting to do so, provided it constitutes a valid, and acceptable excuse for non-compliance. Sometimes, employees are threatened or other pressures are brought to bear upon them by co-employees or their community to stop them from testifying, which, properly are matters that must be brought to the employer's attention and be dealt with by the employer and may well constitute valid and reasonable excuses that justify an employee's refusal to testify against a co-employee. It is in such cases that the issue of a subpoena may be pursued, while providing the employee with the necessary protection."

In this matter, there had been no threats or external pressures that could have justified a refusal to testify. In addition, the employee had initially indicated a willingness to testify but had changed her mind on the Friday before the commencement of arbitration on the following Monday.

The argument that the employer could have asked the commissioner to issue a subpoena to require the employee to give evidence was described as a "red herring". The fact that an employer has the option of utilising a subpoena, but chooses not to do so, does not mean that an employee can refuse a reasonable request to give evidence. The LAC found that the employee was guilty of a disciplinary offence and that a reasonable person sitting as an arbitrator, could not have come to the conclusion that the commissioner had come to. The commissioner's award was set aside and substituted with a finding that the dismissal was fair. The LAC's reasoning is also set out in the following excerpt from the decision :

"[31]     It was argued that at the arbitration into Maili's dismissal the CCMA found his dismissal to be fair without the employee's evidence. That, in my view, is irrelevant and does not excuse or extenuate the egregiousness of the insubordination. The employee was instructed to perform an act which was reasonable and valid and she refused to obey that instruction. She has not proffered any acceptable and valid reason for not complying with the instruction. As stated earlier, that the evidence you are called upon to give, is neither important nor relevant, is not a decision that the witness, who is called upon to testify, can make, and act upon, as if, or even if, his/her belief is correct. The misconduct in this instance is compounded by the fact that she was not being honest. A working day or two before the arbitration, she remembered the whole of the incident and sat with the employer's management where she was told what she would be asked and she answered those questions, but a day later she claimed she could not remember. Furthermore, the consequence of treating lightly such misconduct, is that it will have a negative impact on the entire workforce and management when it comes to disciplining any individual in the workforce by relying on evidence of a fellow employee or employees."

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A reading of this decision indicates that the LAC viewed the employee's conduct in a very serious light. It should also be pointed out that the employee does not appear to have been a manager or supervisor. A refusal by managerial or supervisory staff to give evidence should be regarded in an even more serious light, given that, typically, these employees would be required to maintain discipline in the workplace. However, it is as well to remember that the LAC accepted that, in certain circumstances, an instruction to testify could be unreasonable and an employer should consider such cases carefully. This was also accepted in the recent decision of the Constitutional Court in National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others where, albeit in a different context, it was stated that an employer has a duty to protect the employee's individual rights, including a duty to take reasonable steps to ensure the safety of employees.

Finally, it seems logical that LAC's approach would also apply to refusals to testify at an internal disciplinary enquiry.

Peter le Roux

Employment | Executive Consultant

pleroux@ENSafrica.com

+27 83 626 2909