Kaefer Energy Projects (Pty) Ltd v CCMA and Others (LAC) (Case no: JA59/20), an appeal taken before the Labour Appeal Court (LAC), dealt with this question in its judgment on 26 October 2021.
An employees termination was due to her refusal to testify about a heated argument between her manager and another employee, Tebogo Maili.
To avoid an escalated situation, the employee rushed to the manager’s office and escorted Maili out of the office.
Due to the altercation, Maili was subsequently dismissed and referred to the CCMA for an unfair dismissal dispute. The employee was required to give evidence in support of her employer.
She was terminated from her employment for refusing to testify. She too filed a complaint with the CCMA alleging unfair dismissal.
A CCMA commissioner considering the fairness of the dismissal of an employee for refusing to testify found that the employee did not commit misconduct since there was no evidence to back up a suspicion that she refused to testify to protect Maili or conceal evidence.
According to the commissioner, if the employee was a key witness in the case, the employer should have subpoenaed her.
Having been dissatisfied with the award, the employer applied for review from the Labour Court, which agreed with the commissioner and dismissed the review application.
At the Labour Appeal Court, the employer argued that the employee owed the employer a duty of good faith, and that her refusal to testify constituted both insubordination and a breach of the employee’s duty of good faith.
According to the employee, she refused to be a witness because she didn’t consider her testimony relevant and didn’t want to disgrace herself.
She claimed that she did not remember what was said between her manager and Maili. According to the employee, her refusal was neither deliberate nor untrue; therefore, her dismissal was unjust.
Was the dismissal justified?
The LAC stated that the commissioner had “missed the point altogether”.
The commissioner concluded that the employee was not guilty of any misconduct and that the employer should have subpoenaed her.
LAC held that the employee was given a reasonable instruction.
Thus, it was not up to her to decide what would and would not be relevant at the arbitration.
She was asked to testify about what happened during the altercation and was expected to follow the instruction.
If her reasons for refusing the order were valid and acceptable, she could have refused it; however, there was no evidence to support this claim.
Additionally, the LAC found that there are some instances where a subpoena may be relied on.
However a failure to subpoena the employee cannot constitute a reason for the employee to refuse to assist the employer, where the instruction is reasonable.
The LAC found that the employee’s failure to comply with the instruction was misconduct in the absence of a valid and reasonable excuse.
The court found that the employee’s dismissal was justified in light of the facts.
As employees are frequently asked to testify against fellow employees, this case is an important precedent in cases where the employee refuses to perform their duties without a valid reason.
