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[2021] ZALAC 42
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Kaefer Energy Projects (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA59/20) [2021] ZALAC 42; (2022) 43 ILJ 125 (LAC); [2022] 2 BLLR 166 (LAC) (26 October 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JA59/20
KAEFER
ENERGY PROJECTS (PTY)
LTD Appellant
and
COMMISSIONER FOR
CONCILIATION,
MEDIATION AND
ARBITRATION First
Respondent
COMMISSIONER MATOME
VICTOR SEHUNANE Second
Respondent
LIFA
SUKAZI Third
Respondent
Heard:
31
August 2021
Delivered:
26
October 2021
Coram:
Waglay
JP, Jappie JA and Coppin JA
JUDGMENT
WAGLAY
JP
Introduction
[1]
This
is an appeal against the judgment of the Labour Court which dismissed
the appellant’s application to review and set aside
the award
of the second respondent and replace the award with an order that the
dismissal of the third respondent (the employee)
was fair.
Background
[2]
Briefly,
the employee was appointed as an assistant administrator in 2012 and
was later promoted to the position of human resource
admin clerk. She
was about two months into her new position when, on 18 July 2017, she
was dismissed for misconduct.
[3]
Two
charges were levelled against the employee. The first related to her
refusal to testify against her co-employee on behalf of
the
appellant, her employer, at a misconduct arbitration. It is common
cause that a heated altercation occurred between one, Avasha
Govender
(Govender), the appellant’s manager and an employee, one Tebogo
Maili (Maili) in Govender’s office and their
voices could be
heard by other colleagues. What was said between the two is not clear
nor relevant in this matter. The employee
heard the loud argument so
she rushed to Govender’s office and escorted Maili out of
Govender’s office to avoid things
getting out of hand. It
was this incident that led to disciplinary action being taken against
Maili and resulting in his
dismissal. Maili challenged his dismissal
which eventually was set down for arbitration at the Commission for
Conciliation, Mediation
and Arbitration (CCMA). The appellant sought
the employee to testify at the arbitration.
[4]
The
second charge related to the breach of her employment contract, by
leaking confidential information, in that the employee informed
one,
Victor Phosa, that she had received a call which said that he (Phosa)
had presented false qualifications to obtain employment
with the
appellant.
[5]
At
her disciplinary hearing, the employee was found guilty and
dismissed. Aggrieved by her dismissal, the employee referred a
dispute
to the CCMA alleging that her dismissal was unfair.
The arbitration
[6]
As
regards the first charge, the Commissioner stated that he would not
entertain the question whether the employee refused and later
agreed
to testify, or whether she was threatened to testify. He proceeded to
deal with the issue as to whether an employer can
dismiss an employee
for refusing to testify. He found that since there was no evidence
led to show that the employee deliberately
refused to testify in
order to protect Maili or to conceal evidence, the employee had not
committed any misconduct. The Commissioner
ruled that if the employee
was an important witness, the employer should have subpoenaed her.
The Commissioner added that there
was doubt about the importance of
the employee’s testimony at Maili’s arbitration hearing
and that there was no bad
faith on the part of the employee.
[7]
With
respect to the second charge, the Commissioner found that because the
employee was new in her position, an induction was needed
so that she
could have been aware of the consequences of handling and/or of
disclosing confidential information. The employee was
nevertheless
found to have misconducted herself, but because of the employee’s
clean disciplinary record, the Commissioner
found that a sanction
short of dismissal was the appropriate sanction. To this end, the
Commissioner issued a final warning valid
for six months. The
appellant had nothing to say on this issue, I assume it was satisfied
with the arbitrator’s finding and
decision on this issue.
The Labour Court
[8]
However,
the appellant was dissatisfied with the arbitrator’s finding
that the employee had committed no misconduct in failing
to comply
with an instruction to testify, and sought to set the award aside and
to have it substituted with an order that the dismissal
was fair. The
Labour Court arrived at the same conclusion as the arbitrator, albeit
for different reasons, namely, that the appellant
could not dismiss
the employee for refusing to testify. The Labour Court held that a
corollary to section 5(3) of the Labour Relations
Act 66 of 1995
(LRA), that no person may be advantaged in exchange for not
participating in any proceedings in terms of the LRA,
is that no
person may be prejudiced for refusing to participate in any
proceedings.
[9]
The
Labour Court found that a witness who refused to testify may be
compelled to do so through a subpoena. It surveyed foreign cases
and
took the view that it would be improper to suggest that an employer’s
contractual powers extend to instructing an employee
to testify
against her will and that the only way to compel an employee to
testify is to cause a subpoena to be issued against
the employee.
The appeal
[10]
On
appeal, the appellant contends that the employee owes a duty of good
faith which stems from her contractual obligations towards
the
appellant. To this end, the appellant submits that the refusal to
testify on behalf of the appellant amounts to insubordination,
as the
employee had breached her duty of good faith. The appellant further
contends that the employee was a key witness as she
had witnessed the
altercation between Govender and Maili.
[11]
The
appellant, in support, relies on the Constitutional case of
National
Union of Metalworkers of SA on behalf of Nganezi & others v
Dunlop Mixing & Technical Services (Pty) Ltd &
others (Casual
Workers Advice Office as Amicus Curiae)
(2019) 40 ILJ 1957 (CC) (
Dunlop
).
In that matter, one of the questions faced by the court was whether
there was a duty on employees to inform the employer which
employees
were responsible for the acts of violence during a strike. The
appellant did however go on to say that
the
present case is far more straightforward. The employee was a witness
to an alleged serious misconduct by a fellow employee.
She was
instructed to make herself available to testify on behalf of the
company as to her recollection of events at the arbitration.
She was
not required to perjure herself, or to testify to anything other than
her own recollection of events. There was no threat
of harm or risk
of recrimination if she testified at the arbitration. She was merely
required to testify about an incident in which
she had played a role.
[12]
The
employee’s case is that she refused to be a witness at the
arbitration because she did not think her evidence was relevant
and
she did not want to “make a fool of herself”, because she
did not remember what was said between Govender and Maili.
Govender’s
testimony confirmed that the employee had repeatedly said that she
did not have a recollection of what was said
during the altercation
The employee stated that the arbitrator correctly
found
that there was no basis for making a misconduct finding against an
employee for her refusal to testify at an arbitration because
her
refusal was neither deliberate nor did she act in bad faith in that
regard. Also important was the fact that the employee was
not called
to give evidence at Maili’s internal disciplinary hearing.
Finally, the employee submitted that if the appellant
was of the view
that her evidence was important, then it could and should have
secured her attendance at arbitration by means of
a subpoena
.
[13]
In
determining whether the employee was guilty, the arbitrator had 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?
[14]
The
evidence before the arbitrator was that the employer, through
Govender, approached the employee and instructed her to be a witness
for the appellant at the arbitration which was to take place in
respect of the unfair dismissal claim made by Maili against the
appellant. The employee reacted by saying she could not remember
everything that happened regarding the incident. The arbitration
was
set down for a Monday, and, either on the Thursday, or the Friday
preceding the Monday, Govender again approached the employee
indicating the importance of her testimony at Maili’s
arbitration, but the employee maintained that she could not recall
what happened and did not want to be a witness. Govender then told
her to take some time and think about it and to get back to
her
later. In her testimony, the employee said that Govender said to her
that if she does not testify, she could be dismissed (this
was never
put to Govender who was the first witness to testify, notwithstanding
that the employee, unlike the appellant, was legally
represented).
[15]
In
any event, a few hours after she was told to think about the
Govender/Maili incident, the employee returned to Govender’s
office and indicated to Govender that she does remember everything
relating to the incident. In the presence of another witness
Mr Kent
Ziervogel, she confirmed her memory recall, this was after she was
given the questions that would be asked of at the arbitration.
The
employee therefore was acknowledging that she was in a position to
answer the question the Appellant said will be put to her
and that
she would testify at the Maili’s arbitration.
[16]
There
was no editing or coaching of the employee as to what answers she
should give to the questions asked. It is clear from the
evidence
presented that the employer wanted the employee to testify at the
arbitration about her involvement in the Govender/Maili
incident
which was that: there was an altercation between Govender and Maili
where voices were raised; things were said by each
other which was
heard by her; that it was a loud altercation where she (the employee)
felt compelled to intervene because she feared
things may get out of
hand; and she did so; she went into the open office where Govender
and Maili were screaming at each other
and removed Maili from
Govender’s office before things got out of hand.
[17]
Having
agreed to testify which was the position until the close of business
on the Friday before the Monday, when the arbitration
was to take
place, two things were certain (a) that the employee remembered
everything with regard to the incident on which she
was instructed to
testify and (b) she was willing and would be testifying on Monday.
[18]
Sometime
on Friday evening, the employee sent a message to Govender to say
that she no longer intended to testify. Govender tried
to contact her
to establish the reason why the employee had changed her mind. The
employee refused to answer or return Govender’s
calls, but
replied to one of Govender’s messages to say that they should
proceed without her.
[19]
The
arbitration into the fairness of Maili’s dismissal took place
on Monday, as scheduled, and the employee did not attend
the
arbitration.
[20]
The
arbitrator, notwithstanding the evidence set out above, as stated
earlier, decided that if the employer wanted the employee
to testify,
it could have subpoenaed her and since that could have addressed the
problem, there was no misconduct committed by
the employee.
[21]
The
arbitrator totally misconstrued what was required of him. Based on
what he was required to consider, he seemed to have missed
the point
altogether.
[22]
The
fact of the matter is that the employee was given a clear
instruction, which was neither unreasonable, nor unfair. She was
asked to testify, but not told what to say although she was asked to
try and remember what had been said. The one issue she could
testify
about, notwithstanding her periodic amnesia, was that there was an
altercation in Govender’s office between Govender
and Maili and
she intervened and removed Maili from the office to calm things down,
as the argument between them could have gotten
out of hand.
[23]
The
employee’s justification for her refusal to testify was
twofold: that she could not remember everything that happened
during
the incident about which she was required to testify, other than what
was stated in the preceding paragraph, and that her
evidence would be
of no use to the appellant, and, worst still, that she will make a
fool of herself if she gave evidence. An important
fact is that it
was not for the employee to decide whether her evidence would be
relevant. 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.
[24]
In
this matter, there was no evidence of threats or any other external
pressures that played any role in the employee’s decision
not
to testify. Furthermore, although she had maintained that she was not
comfortable to testify she agreed to testify in the week
before the
arbitration, then changed her mind at the end of the work day on
Friday, effectively, the day before the arbitration.
[25]
Other
than her belief that she had no relevant evidence to give and that
she did not want to make a fool of herself, there is simply
no
evidence whatsoever, to indicate or from which to properly draw any
kind of inference that she may have been threatened, or
that she
feared reprisals from fellow workers if she testified.
[26]
The
red herring, both at the arbitration and at the Labour Court, was the
issue of the subpoena. Any litigant has that as a tool
to compel a
witness to testify. The fact that that tool is available does not
mean that because it is not used, an employee witness
can simply
refuse an employer’s instruction that he/she testifies at a
hearing, or that the refusal by the employee to carry
out the
employer’s instruction to testify, where the demand is not
unreasonable, cannot lead to disciplinary action being
taken against
the employee.
[27]
Essentially,
there was no reason whatsoever for the employee to refuse to testify.
It was not for her to say whether or not her
evidence was relevant.
On a very basic level, even though she claimed that she could not
remember what was said between Govender
and Maili, her corroborative
evidence that there was an altercation with harshly raised voices,
might have been relevant, assuming
the employee against whom she
testified denied any altercation. She has not denied that she, at
least, remembered this.
[28]
In
these circumstances, the arbitrator’s decision that the
employee committed no wrong, that her decision not to testify was,
neither deliberate, nor in bad faith, is not a decision that a
reasonable person, sitting as an arbitrator with the evidence that
was before him could have arrived at. The employee was guilty of the
misconduct complained of and that should have been the arbitrator’s
finding.
[29]
With
regard to what is the appropriate sanction, no purpose can be served
in referring the matter back to the CCMA to determine
the appropriate
sanction this court is in as good a position to deal with and
finalise the matter.
[30]
The
refusal to obey the instruction has to be seen in a serious light.
The employee challenged the authority of the employer and
this can
have the consequence of hamstringing the employer’s enforcement
of discipline in the workplace. An employee is,
in my view, obliged
to carry out a reasonable instruction given to her/him by the
employer. Refusing to do so, may amount to insubordination.
Depending
on the importance of the instruction and the absence of any
acceptable excuse for the refusal to carry out the instruction,
it
can correctly be held to be sufficiently serious to warrant the
sanction of dismissal.
[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.
[32]
Imposing
a final written warning on an employee, who unjustifiably refuses to
testify in a disciplinary hearing, or at arbitration
hearing would be
to condone obstructive conduct on the part of such an employee to the
employer’s right to enforce disciplinary
against (possible)
errant employees, which, clearly, cannot be countenanced.
[33]
Had
the arbitrator correctly found the employee guilty of insubordination
for failing to comply with a reasonable instruction, I
have little
doubt that he would have imposed the penalty of dismissal, which was
appropriate in the circumstances
[34]
In
the result, I make the following order:
1
The
appeal is upheld;
2
The
order of the Labour Court is set aside and replaced with the
following:
“
The
arbitrator’s award is reviewed and set aside and replaced with
an award that the dismissal of the employee was fair.”
Waglay
JP
Jappie and Coppin JJA
concur in the judgment of Waglay JP
APPEARANCES
FOR THE
APPELLANT: Mr
G Fourie SC
Instructed
by Brian Bleazard Attorneys
FOR THE
RESPONDENT: Mr C
Berkowitz of Berkowitz Attorneys