What does one do with whistleblowers who refuse to testify in a disciplinary hearing because they fear intimidation?
In a recent arbitration in the matter of TAWUSA obo Khumalo & others vs 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 employer 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 employer and was approached by witness X with information regarding theft.
- An investigation was conducted on the basis of this information provided by witness X.
- Witness X's testimony was crucial to the employer’s case, as he had witnessed certain incidents and had 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 had 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 had been blocked out to protect his identity.
- The accused employee was able to read the affidavit and take note of the evidence contained therein, and it was obvious that this evidence was crucial.
- However, the witness did concede under cross-examination that witness X had not been intimidated yet, and that no SAPS case had been opened.
After an analysis of the law, the arbitrator concluded that he had a discretion to allow in camera evidence.
He further ruled, on the basis of the considerations outlined above, as well as the fact that witness X's evidence about the events leading to the dismissal could be corroborated by the verbal evidence of others, that 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 accused employee 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: Firstly, that employers cannot deny the accused employee the opportunity to see and question his or her accuser purely on the basis of the assumption that the whistleblower is justified in his or her reluctance to testify. A proper foundation for this fear has to be established. Secondly 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 on the other hand 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 and Elsabe Huysamen of Maserumule Employment Consultancy for www.labourwise.co.za, an online labour relations service aimed at assisting employers with the implementation of effective labour relations. They can be contacted via www.labourwise.co.za or firstname.lastname@example.org