Employees who refuse to testify

Sep 28, 2009


What does one do with whistle-blowers who refuse to testify in a disciplinary hearing
because they fear intimidation?

In a recent arbitration in the matter of TAWUSA obo Khumalo & others v
Supergroup, the employer applied to the arbitrator for leave to have the testimony of
its main witness (referred to in the proceedings as ‘witness X’) heard in camera and
not in an open forum. The witness was willing to testify, but for fear of his life he was
not willing to testify in an open forum. In considering this request the arbitrator
requested the respondent to call another witness to testify under oath, and in open
forum, regarding the reasons why in camera proceedings were required. This
witness was subjected to cross-examination.
This witness’s evidence was briefly as follows:

  • He was a manager of the respondent and was approached by witness X with
    information regarding theft.
  • An investigation was conducted based on this information provided by witness X.
  • Witness X’s testimony was crucial for the respondent’s case as he witnessed
    certain incidents and overheard certain discussions.
  • Witness X was a reliable employee, but for fear of intimidation and his safety he
    was not willing to testify in an open forum.
  • The dismissed employees were all gun owners and therefore witness X had
    reason to believe that his life might be endangered, as his evidence contributed to
    their dismissals.
  • The witness provided the commissioner with an affidavit deposed to by witness X
    at the SAPS, although witness X’s name was blocked out to protect his identity.
  • The applicant was able to read the affidavit and take note of the evidence
    contained therein and it was obvious that this evidence was crucial.
  • The witness did however concede under cross-examination that witness X had
    not been intimidated yet and no SAPS case had been opened.

The arbitrator concluded, after an analysis of the law, that he had a discretion to allow
in camera evidence.

He further ruled, based on the considerations outlined above, as well as the fact that
the witness’s evidence about the events leading to dismissal could be corroborated
by verbal evidence of others, he would allow witness X to testify in camera.

The arbitrator accordingly allowed each party an opportunity to prepare questions
that he, the arbitrator, would then pose to witness X. He would record the response
of witness X and provide feedback to both parties. In this way, the applicant was
allowed to ‘cross-examine’ the witness through the arbitrator.

Employers are often faced with a situation where someone with critical information
about the wrongdoing of a colleague ‘blows the whistle’, but is reluctant to testify
against the colleague for fear of intimidation or harm. The case discussed here
illustrates two points: first, that employers cannot deny the accused employee the
opportunity to see and question his or her accuser based purely on the assumption
that the whistleblower is justified in his or her reluctance to testify. A proper
foundation for this fear has to be established. Second, it shows that where there are
valid grounds for the witness’s concerns, it is possible to design a process that
would, on the one hand, provide protection to the reluctant witness, while at the
same time giving the alleged transgressor the best possible opportunity of
questioning the evidence against him or her. Employers who find themselves stuck
in this type of dilemma, would be well advised to seek expert advice.

Barney Jordaan & Elsabé Huysamen
Maserumule Consulting

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