Does failure to comply with an instruction to testify in CCMA arbitration proceedings
amount to insubordination and warrant dismissal?

This is the question which the Labour Appeal Court (LAC) was required to decide in Kaefer Energy
Projects (Pty) Ltd v CCMA and Others (LAC) (Case no: JA59/20), a judgment handed down on 26
October 2021.

In this case, the employee was dismissed for misconduct following her refusal to testify about a
heated argument between her manager and a fellow employee, Tebogo Maili. The employee heard
the argument and she rushed to her manager’s office and escorted Maili out of the office to avoid the
situation escalating any further. The altercation resulted in Maili subsequently being dismissed and
referring an unfair dismissal dispute to the CCMA. The employee was required to give evidence, as a
key witness for the employer.

The employee refused to testify, and she was subsequently dismissed. She too referred an unfair
dismissal dispute to the CCMA.

When considering the fairness of the dismissal refusing to testify, the CCMA commissioner found that
the employee did not commit misconduct as there was no evidence led to confirm that she
deliberately refused to testify to protect Maili or to conceal evidence. The commissioner further held
that that if the employee was a key witness to the matter, the employer should have subpoenaed her.

Dissatisfied with the outcome, the employer sought to review the award at the Labour Court. The
Labour Court agreed with the commissioner and dismissed the review application.

On appeal before the Labour Appeal Court, the employer contended that the employee owed a duty
of good faith to the employer and that her refusal to testify amounted to insubordination and a breach
of her duty of good faith.

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 her manager and Maili. The employee claimed that her refusal was
neither deliberate nor in bad faith and on that basis her dismissal had been unfair.

The LAC found that the commissioner had “missed the point altogether” in finding that the employee
was not guilty of any misconduct and that the employer should have subpoenaed the employee.
The LAC found that the employee was given a reasonable instruction and that it was not for the
employee to decide what would and would not be relevant at the arbitration. She was requested to
testify as to her recollection of what was said during the altercation and was required to comply with
the instruction.

The employee could have refused the instruction, provided that her reasons for doing so were valid
and acceptable; however, there was no evidence of this.

The LAC further held that there are some instances in which a subpoena may be relied on but the
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 concluded that in the absence of a valid and reasonable excuse for failing to comply with the
instruction, the employee was guilty of misconduct.

Based on the facts, the court found that the employee’s dismissal was fair.

Considering that employees frequently play a critical role in testifying against fellow employees, this
case is important authority in instances where an employee refuses to testify and has no valid reason
for doing so.

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