Termination of employment for insubordination

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Howes Inc. Office

Can an employer terminate an employee’s employment for insubordination, where the employee refuses, without a valid reason to follow the employer’s reasonable instruction to testify as a witness at an arbitration?

The Labour Appeal Court, has recently answered this question in the affirmative in the matter of Kaefer Energy Projects (Pty) Ltd v Commission for Conciliation, Mediation Arbitration and Others (2022) 43 ILJ 125 (LAC).

Summary of the facts:

Ms Govender (the employee’s manager) and Mr Maili (a co-employee) engaged in a heated altercation within Ms Govender’s office. Their voices could be heard by other colleagues in the workplace, and as such, the employee, who, at the time was a human resources admin clerk, rushed into Ms Govender’s office and she proceeded to escort Mr Maili out of Ms Govender’s office to try and avoid the matter from getting out of hand.

The employer then instituted disciplinary action against Mr Maili and he was consequently dismissed. Mr Maili elected to challenge his dismissal at the Commission for Conciliation, Mediation and Arbitration (the CCMA). Ms Govender, on behalf of the employer instructed the employee to testify at Mr Maili’s arbitration on behalf of the employer, however, she refused to do so (after initially agreeing to do so).

The employer then leveled two disciplinary charges against the employee, however it is the first charge that this case focuses on, namely, the charge related to her refusal to testify at the arbitration on behalf of her employer. The second charge related to an alleged breach of her employment contract (leaking of confidential information to a different person). The employee was found guilty of the allegations leveled against her and she was dismissed by the employer. The employee referred an unfair dismissal dispute to the CCMA.

The CCMA:

The arbitrator of the CCMA found inter alia that since there was no evidence led by the employer to show that the employee deliberately refused to testify to protect Maili or so as to conceal evidence, the employee had not committed any misconduct. The arbitrator further held that if the employee was such an important witness, the employer should have subpoenaed her.

The Labour Court:

The employer being dissatisfied with the CCMA award, in particular the finding that the employee had not committed misconduct for failing to comply with an instruction to testify, sought to have the award reviewed and set aside. The employer failed to find success at the Labour Court as it to arrive at the same conclusion as the CCMA, although its reasons differed to that of the CCMA. The Labour Court held inter alia that ‘a corollary to s 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.’ It further held that a witness who refused to testify may be compelled to do so through a subpoena.

The Labour Appeal Court:

The LAC examined the evidence that was before the arbitrator, which in summary reflected that Ms Govender, as the employee’s manager, instructed the employee to testify at Mr Maili’s arbitration however she advised Ms Govender that she could not recall everything relating to the incident. Ms Govender again approached the employee, and stressed the importance of her evidence however she maintained that she could not recall what happened, and that she did not want to be a witness at the arbitration. Ms Govender advised the employee to take some time to think about it but that she needed to revert urgently, which the employee did a few hours later. In the presence of a third party, the employee confirmed with Govender, that she did in fact remember the incident and that she could respond to the questions that the employer compiled and that would be asked of her at the arbitration. The employee thus acknowledged that she was in a position to answer the questions and that she would be available to testify at Maili’s arbitration. On the Friday evening prior to the arbitration commencing on the Monday morning, the employee sent a message to Govender recording that she had changed her mind and that she was not going to testify. Although Govender tried to contact her, the employee failed to answer her calls however replied to one of the messages recording that the employer must proceed without her. The employee did not attend the arbitration proceedings.

The LAC set out that in determining whether the employee was guilty of the misconduct, the arbitrator had to consider the following:

  1. The misconduct that the employee committed (ie her refusal to carry out a lawful instruction);
  2. Whether the instruction was lawful, reasonable or fair?
  3. Whether the employee was in a position to carry out the instruction?
  4. Whether there was a lawful or reasonable excuse for the employee to refuse to carry out the instruction?


The LAC found that the arbitrator totally misconstrued what was required of him, as the employee had refused to carry out a lawful instruction. The employee was given a clear instruction, which was neither unreasonable nor unfair. The employee was asked to testify however she was not told what to say. Despite her initial failure to recollect all the events, she was in a position to answer the employer’s questions that were prepared for her, and she confirmed that she would testify. She could carry out the instruction. The reasons advanced by the employee to try an justify her refusal to testify was effectively that she could not remember everything that was said, that her evidence would be of no use to the employer and that she would make a fool of herself. The LAC held however that it was not up to the employee to decide whether her evidence was relevant or not as a valid and lawful instruction to testify had been issued, and accordingly, she had a duty to comply with that instruction. The employee had no valid reason to refuse the employer’s instruction to testify.

The LAC did recognise that there are instances where employees would be in a position to provide valid and acceptable excuses for not wanting to testify, and in such instance, the employer must give due consideration to the same. As an example, where an employee has been threatened, or other pressures are brought on the employee by co-employees or the community. These excuses may very well constitute a valid and reasonable excuse to refuse the instruction and this is when it would be appropriate to utilise a subpoena, as it provides the employee with some protection. In this case however, the LAC found absolutely no evidence of any threat or other external pressure that played a role in the employee’s refusal to testify.

The LAC held that the mere fact that an employer has the tool of a subpoena available to it in order to compel a witness, does not mean that because the employer did not use it, that the employee can simply refuse an instruction to testify at a hearing. It further does not mean that where the employee refuses to carry out the employer’s reasonable instruction to testify, that this refusal cannot lead to disciplinary action being taken against the employee.

The employee’s refusal to obey the reasonable and valid instruction had to be viewed in a serious light, as the employee’s refusal challenges the authority of the employer, and it may hamstring the employer’s enforcement of discipline. The LAC held that an employee is obliged to carry out a reasonable instruction given to him/her by the employer, and where an employee refuses to do so, this may amount to insubordination. Depending on the importance of the instruction and in the absence of an acceptable excuse for the refusal to carry out the instruction, it can be sufficiently serious to warrant the sanction of dismissal.

The LAC further stressed that it was important for employers to not treat this kind of misconduct lightly, otherwise it would have a negative effect on the entire workforce and on management when it came to disciplining any individual.

As such, the LAC held that the arbitrator’s finding that the employee had committed no misconduct and that her decision to not testify was neither deliberate or in bad faith, was not a decision that a reasonable person sitting as an arbitrator with the evidence before him, would have arrived at. Accordingly, the award was reviewed, set aside and the award was replaced it with an order that the dismissal of the employee was fair.

Conclusion:
From the above, it is clear that where an employer issues a lawful, reasonable or fair instruction to an employee to testify at an arbitration, the employee must comply with the instruction issued by the employer, unless the employee raises a lawful or reasonable excuse for refusing to comply with the instruction.

Please note that this case law summary, does not in any way constitute legal advice by Howes Inc, as it is a summary of the facts and legal principles utilised by the Labour Appeal Court in the context of the particular facts before it. Should you or your company have any queries in relation to a matter of this nature, please contact our office for tailored advice, applicable to your/your company’s particular situation.