CCMA and Bargaining Council commissioners have the powers to issue subpoenas, but unfortunately these subpoenas are usually seen as toothless. More often than not, subpoenas are ignored, and the witnesses fail to attend the proceedings.
Commissioners can also cite parties for contempt, but as it is necessary to refer such a ruling to the Labour Court for a decision, it seldom goes further than a threat that a certain party might be held in contempt.
In terms of section 142(8) of the LRA the failure of a witness to appear and fully participate in the proceedings after having been subpoenaed, constitutes contempt of the CCMA.
Although a 2007 judgment (Bargaining Council for The Clothing Manufacturing Industry and Another v Prinsloo), explained the process involved when a commissioner referred a contempt matter for decision to the Labour Court, little has been reported of attempts by commissioners to refer such rulings to the Labour Court. In most instances the failure to give effect to a subpoena seemingly simply died in the hands of the commissioner.
The decision in the matter of CCMA and another v Dyasi and Another handed down on 26 September 2020, has come as a breath of fresh air.
The Labour Court made it clear that the failure to comply with subpoenas is a serious matter.
The facts are briefly that the two respondents were previously employed by a company which allegedly unfairly dismissed six SACCAWU members. They were therefore critical witnesses in the arbitration before the commissioner in question.
It serves to be noted that this matter had a chequered history and dated back to 2014. The witnesses had previously testified before “the late Commissioner Mrwebi”. Thereafter the matter sat before different commissioners until it finally sat before the second applicant who started with the matter afresh and “the respondents were then required to avail themselves again” .
Despite the fact that they were properly served to attend the rescheduled arbitration, they failed to respond to three subpoenas.
At the arbitration scheduled for 30 July 2018 when they once again failed to appear, the commissioner initiated contempt proceedings against them.
Although the first respondent attempted to provide an explanation – which was found to fall short of a satisfactory explanation – the second had “not bothered to file any submissions”, thus persuading the court that “a confirmation of the ruling is even more appropriate” .
The court accordingly concluded that it would be appropriate to impose
“a sanction of incarceration for a period of 3 (three months), which will serve as a deterrent for any such future conduct on the part of the respondents” .
This finding was reduced to paragraph 2 of the court’s order:
The First and Second Respondents are to be committed to imprisonment for a period of three (3) months for contempt of court.
The respondents must have been extremely relieved when they read paragraph 4 of the court’s order giving them what in essence amounted to a second chance to give effect to the subpoenas, and as a consequence of avoid a jail term:
The sanction imposed as in paragraph 2 above, shall be suspended on condition that the First and Second Respondents comply fully with paragraph 3 above.
This judgment is important because it sends two strong messages to parties. The first is that parties cannot willfully ignore a subpoena. The second is that it doesn’t matter how long it takes before the Labour Court confirms a contempt ruling – contempt of the CCMA could very well result in a jail sentence!