Employment update – Employee defying an instruction to testify at the CCMA

April 1st, 2022

In Kaefer Energy Projects (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2022] 2 BLLR 166 (LAC), the employee was employed by Kaefer Energy Projects (Pty) Ltd (the Company) in the position of human resource administration clerk. While attending to her duties, the employee heard an altercation take place between two colleagues, Ms Govender and Mr Maili. The employee rushed into Ms Govender’s office and escorted Mr Maili out. It was this incident that led to Mr Maili being dismissed by the Company. He subsequently referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

For purposes of the arbitration proceedings at the CCMA, the employee was instructed to testify on behalf of the Company. The employee refused to do so. Thereafter, the employee was charged with two acts of misconduct. The first related to her refusal to testify at the arbitration proceedings. The second related to a breach of her employment contract as a result of her leaking confidential information. The employee was found guilty of both charges and was subsequently dismissed. Aggrieved by her dismissal, the employee referred an unfair dismissal dispute to the CCMA.

With respect to the first charge, the CCMA commissioner found that since there was no evidence to demonstrate that the employee had deliberately refused to testify in order to protect Mr Maili, the employee had not committed misconduct. The Company could have, however, subpoenaed the employee in these circumstances. With respect to the second charge, the commissioner found that the sanction of dismissal was too harsh and issued the employee with a final written warning.

The Company was dissatisfied with the commissioner’s finding that the employee had not committed misconduct in failing to comply with a reasonable instruction to testify. The Company accordingly approached the Labour Court (LC) to set the award aside. The LC found, however, that no person may be penalised for not participating in any proceedings in terms of the Labour Relations Act 66 of 1995, and that the only way to compel an employee to testify is to subpoena the employee concerned. The LC upheld the award on review.

On appeal to the Labour Appeal Court (the LAC), the Company contended that the employee’s refusal to testify constituted insubordination and amounted to a breach of her duty of good faith. The employee, on the other hand, submitted that her refusal was neither deliberate nor did she act in bad faith. She refused to be a witness because she did not think her evidence was relevant and she did not want to ‘make a fool of herself’.

In determining whether the employee was guilty, the LAC noted that the commissioner was required to consider –

‘(a) the misconduct that the employee was said to have committed – this was her refusal to carry out an instruction given to her;

(b) whether the instruction was lawful, reasonable or fair;

(c) whether the employee was in a position to carry out the instruction; and

(d) whether there was a lawful or reasonable excuse for her to refuse to carry out the instruction?’

By finding that the Company should have subpoenaed the employee, the LAC held that the commissioner had totally misconstrued the issue before him. The employee had been given a clear instruction to testify and she had a duty to comply with that instruction. There was nothing unlawful or unreasonable about the instruction because the employee had not been coached or told how to respond to questions. All she was required to do was confirm that there had been an altercation in which she saw fit to intervene. It was not for the employee to decide whether her evidence would have been relevant. While an employee may raise a valid excuse for non-compliance, in the present matter, there was no evidence of threats or pressure that played any role in the employee’s decision not to testify.

The LAC found that the issue of the subpoena both at the arbitration and the LC was accordingly a red herring. The fact that a subpoena could have been obtained does not mean that an employee can simply refuse an employer’s instructions to testify. The employee had not proffered any acceptable and valid reason for not complying with the instruction. The misconduct in this instance was compounded by the fact that the employee was not being honest. A day or two before the arbitration, she was willing to testify and was able to answer the Company’s questions relating to the incident, but a day later she refused to testify claiming she knew nothing about the incident.

The LAC held that the consequence of treating such misconduct lightly is that it will have a negative impact on the entire workforce when it comes to disciplining any individual by relying on evidence of a fellow employee.

In the circumstances, the LAC found that the commissioner’s decision that the employee had not committed misconduct was not a decision a reasonable commissioner could have arrived at. Had the commissioner correctly found the employee to be guilty of insubordination, he would have imposed a penalty of dismissal, which was appropriate in the circumstances.

The appeal was upheld, and the award was replaced with a ruling that the employee’s dismissal was fair.


Accused persons have a fundamental right to be tried in their presence

In Mosikili v South African Board of Sheriffs [2022] 2 BLLR 197 (WCC), the applicant, a Sheriff falling under the jurisdiction of the South African Board for Sheriffs (the respondent), was found guilty on a slew of charges for misconduct. The respondent’s Disciplinary Committee recommended that the applicant be barred from acting as a Sheriff. The applicant appealed the decision to the Appeal Board, which appeal was rejected.

The applicant approached the court to appeal and set aside the decision barring him from practicing as a Sheriff. The applicant contended that the decision was unlawful, irrational and irregular in terms of the Sheriffs Act 90 of 1986 (the Act).

After pointing out that the applicant’s papers were not a model of clarity because he had drafted them himself and condoning the late filing of the application, the court noted that neither the applicant nor his legal representative had turned up at his disciplinary hearing. The applicant, however, furnished a medical note to explain his absence and the applicant’s legal representative sent a colleague to the hearing to seek a postponement. Notwithstanding this, the hearing continued in the applicant’s absence and the appeal was dismissed.

The question before the court was whether the decision of the Appeal Board was irrational, unfair or irregular, as contended by the applicant. The court noted that there is an overarching and essential right of an accused person to be tried in their presence. A deviation from this principal may often do more harm than good. Accordingly, a hearing in the absence of an accused person may be justified only in exceptional circumstances. Similarly, there should be clear, valid and convincing reasons to proceed in the absence of an accused person.

The Appeal Board found that there was nothing preventing the hearing from proceeding in the absence of the applicant on the basis that, among other things –

  • the applicant had failed to provide sufficient proof that he was unable to attend the hearing after being involved in an accident;
  • the applicant’s legal representative only applied for a postponement on the day of the hearing with no justifiable reason;
  • there was overwhelming proof that the applicant was guilty of misconduct; and
  • the Act allowed for hearings to proceed in the absence of the accused.

Having regard to the submissions placed before the Appeal Board, the court was of the view that its findings were unsustainable. In this regard, there was no evidence to indicate that the Disciplinary Committee made any attempt to contact the applicant or to investigate why the applicant had been absent from the hearing. There was no consideration of a potential adjournment or rescheduling of the hearing, nor of the impact of the decision to proceed in the absence of the applicant. There was also no evidence that the applicant or his legal representative had abandoned or waived their right to the hearing.

Although the Act allows for hearings to continue in the absence of an accused, the court found that the Act did not grant the Appeal Board carte blanche to approve every case when this was done. On the contrary, the Act did not provide an unfettered discretionary power to the Appeal Board. Any discretion was required to be exercised with great caution.

In the circumstances, the court found that the Appeal Board’s conclusion was fallacious for several reasons. The Appeal Board should have accordingly found that the decision was procedurally unfair as it failed to comply with the audi alteram partem principle.

Turning to the relief, the court held that nothing in the Act precluded the court from ordering the re-enrolment of the applicant as a sheriff merely because his expulsion was ‘only’ procedurally unfair. The respondent’s argument that only the Minister could re-admit an expelled sheriff was without merit.

The appeal was upheld, and the applicant’s conviction and sanction were set aside.

Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.

This article was first published in De Rebus in 2022 (April) DR 29.

De Rebus