In order for an employee to be said to have been dismissed fairly in our law, the dismissal must both be procedurally and substantively fair. Procedural fairness means that the employee must have been afforded an opportunity to state their own case which includes calling witnesses, if necessary.
Substantive fairness means that the reason for the dismissal must be fair. The question that arises is, when the employer, in pursuit of complying with substantive fairness, needs another employee who witnessed the wrongdoing to testify, refuses to testify, does the employer have recourse against such an employee? Can the employer force that employee to testify against another?
This is very important because if the employee does not testify, or refuses to testify, and their evidence carries the required probative value to find the employee guilty of the misconduct in question, on a balance of probabilities, the evidence is merely hearsay and is therefore inadmissible. It certainly will be prejudicial if used against the accused employee who cannot test and challenge that evidence.
At common law, employees are obliged to assist their employer in the effective running of the business. To the extent that an investigation is a tool to create such efficiencies, an employee has a duty to comply with such an instruction.
Failure to follow this instruction exposes the employee to a charge of insubordination for refusing to obey a lawful instruction. Let’s consider this practical example to illustrate this critical point: A, a store supervisor, witnesses B, a cashier, remove money from the till and inserts the money in her purse. A is certain that B did this and knows that she is stealing from the company.
The company, after counting B’s till, discovers a shortage in her till and finds the invoices to be inconsistent with the money in the till. C, the manager, institutes a charge of unlawful till procedures and/or gross negligence for the shortage. While C is investigating, he discovers that A witnessed the wrongdoing but does not wish to testify because he does not want to be in B’s bad books.
The company can charge A for his refusal to testify and the charge can read: “Gross Insubordination in that on the 9th June 2014, you were instructed by your manager to testify at a disciplinary hearing against a fellow colleague whom you personally witnessed committing misconduct. The said instruction was both valid and reasonable.”
In Chauke v Lee Service Centre (1998) JOL 3624 (LAC) the appellants were dismissed for malicious damage to property. Their appeal was that the charge had no basis to it and that the manner of their dismissal was unfair. The employees, in protest of a dismissal of one of their colleagues for gross negligence, they deliberately committed acts of sabotage by damaging a number of company vehicles.
The company called all employees and requested a list of names from them of those who had damaged company property, they were silent. The acts of sabotage continued until the company issued an ultimatum for the list of names of the wrongdoers to no avail. The company then proceeded with dismissing all employees. The Industrial Court, in finding in favour of the employer, held that “the workers in the paint shop, as a result of the bad relationship that existed, decided to embark on some kind of sabotage, and they decided to collectively remain silent because they were aware that as long as they adopted that attitude they thought that the Respondent would be powerless.”
The Labour Appeal Court found the dismissals to be both procedurally and substantively fair. The principle we can derive from this case is that the failure to assist the employer in identifying culprits violates the duty discussed above of assisting their employer in the effective running of the business. A violation of this duty therefore may itself justify dismissal.