10 December 2021
Employers build cases for disciplinary inquiries using multiple facets such as video evidence, voice recordings, documentary evidence and witness testimony. Although findings in disciplinary hearings are made based on a balance of probability, employers must make use of evidence in order to ensure substantive fairness of the case.
To ensure the procedural fairness of the case, the accused employee must be able to view evidence and cross examine witnesses, this however could be handicapped if witnesses refuse or are reluctant to testify to the events in question.
In a recent case Kaefer Energy Projects (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA59/20) [2021] ZA LAC 42, the Labour Appeal Court dealt with a similar situation. In this case an employee was instructed to testify at an arbitration for the company against a former colleague. The employee had overheard an argument between another Employee (Maili) and a manager (Govender), she then escorted Maili from the office before the matter escalated.
Later, after Maili was dismissed and referred a dispute to the CCMA, the employee was instructed to testify at the arbitration on behalf of the company and against Maili. The employee confirmed that she would do so but later refused to testify. Based on this, the employee was charged with insubordination and was dismissed after being found guilty by the chairperson. Subsequently the employee also referred a dispute to the CCMA for unfair dismissal. The CCMA commissioner and subsequently the Labour Court ruled in favour of the employee for unfair dismissal, thus the employer referred the matter to the Labour Appeal Court.
The Labour Appeal Court ruled in favour of the employer and upheld a fair dismissal. It was stated that employers/litigants have a tool (subpoena) to get a witness to testify at the CCMA, however this does not mean it has to be used and by failing to do so does not give the employee the right to refuse assisting the employer in this manner if the instruction is lawful and reasonable. It was also found that the employer had given a reasonable and lawful instruction to the employee to testify as she was only instructed to recall the events in question. Furthermore the employee did not raise a valid excuse such as being threatened or being pressured to object to the instruction.
Based on the above case it has been made clear that employees have a duty of good faith to the employer and in circumstance where the employee’s refusal to testify could have negative implications for the employer, the employer may instruct an employee to testify on the employer’s behalf. This instruction should however still be lawful and reasonable thus taking into account circumstances such as the employee being threatened or pressured etc. Should an employee refuse a reasonable instruction to testify in disciplinary/CCMA cases, the case mentioned above substantiates disciplinary action against such employee.
Do not hesitate to contact Invictus on 0861 737 263 for assistance with managing discipline in your workplace.
