It often happens that Employers need a specific employee to testify against a colleague at a disciplinary hearing.
It also happens that a witness decides not to “become involved”, whether due to fear of victimisation or based on an existing personal relationship. The question that arises in such instances is whether an employee can be forced to “side” with the employer by testifying or providing a written statement or affidavit.
The Constitutional right to remain silent and not to incriminate yourself apply to arrested persons – and therefore only applies to criminal investigations. If this right is exercised in absence of criminal prosecution, a reasonable inference may be drawn.
In general an employer may therefore require an employee to provide information that pertains to their work duties or information which the Employer requires to protect its interests. Any unreasonable refusal by an Employee to provide this may constitute misconduct.
However, although an employee is expected to be loyal to the Employer and therefore to assist the Employer in disciplinary proceedings, Employers should also consider the potential impact on the individuals, which in some cases may even be threats of physical harm to themselves or their families.
Employers should always act with circumspection and consult with a reputable labour law advisor when sensitive situations arise.