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Home Wrong behaviour Discipline Dismissal: Are lawyers allowed at a disciplinary enquiry?

Dismissal: Are lawyers allowed at a disciplinary enquiry?

Peter McDermott
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Dismissal

When you conduct a disciplinary enquiry at your company – which could possibly lead to dismissal – follow the proper procedure prescribed by the Code of Good Practice in schedule 8 of the Labour Relations Act (LRA) as this will ensure the procedure is fair. For a disciplinary enquiry to be fair, the employee must be allowed to be represented by a trade union representative or fellow employee. Does this mean that they would also be entitled to be represented by a lawyer?

The code doesn't mention employees being allowed to be represented by legal practitioners, at disciplinary enquiries, and so avoid dismissal. This omission effectively denies the employee the right to receive assistance from a legal practitioner. This was the issue before the Supreme Court of Appeal in MEC: Department of Finance, Economic Affairs and Tourism: Northern Province vs Schoon Godwilly Mahumani (Case number 478/03 SCA):

  • The Supreme Court of Appeal (SCA) had to decide if the court, which had made the initial ruling, had been correct in deciding the employee was entitled to be represented by a legal practitioner during an internal disciplinary enquiry.
  • While the SCA didn't rule that there's an absolute right to receive assistance from a legal practitioner in an internal disciplinary enquiry, it didn't say that the employee isn't allowed, point blank, to be represented by a legal representative.
  • The court held that the presiding officer at a disciplinary enquiry should exercise his or her discretion about if the employee should be allowed to receive assistance from a legal practitioner.
  • While he exercises this discretion, the presiding officer should consider if the employee would be prejudiced – and possibly face imminent dismissal - if he wasn't allowed to be represented by a legal practitioner.

Here are examples of factors to look at when you decide if your employees can have their lawyers present at a disciplinary enquiry:

1. Nature of the charges brought,

2. Degree of factual or legal complexity related to the charges,

3. Potential seriousness of an adverse finding, and

4. If the employer will be prejudiced if he allows the employee to have legal representation.

Legal evidence seems to suggest that a presiding officer can't refuse an employee

the right to receive assistance from a legal practitioner simply because the LRA is quiet on the subject. In addition, the disciplinary enquiry might become unfair if he denies legal representation so don't make a hasty decision about allowing employees to have legal practitioners at disciplinary hearings!


Peter Mcdermott

Peter did a Bachelor of Technology (B.Tech), Human Resources Management and Services at Technikon Witwatersrand (1994-1998) and an Advanced Diploma – Labour Law, Law at University of Johannesburg (2001-2002).

He joined Labour Net in 1997 and was a consultant there until 2000, and has been a director and shareholder in Invictus Outsourcing Solutions since November 2001.

Peter has gained extensive knowledge and experience over the past 17 years in dealing with various Human Resources (HR) and Industrial Relations (IR) matters, including but not limited to :

  • Bargaining Council
  • Black Economic Empowerment (BEE)
  • CCMA
  • Contracts of Employment
  • Corporate Law
  • Disciplinary Procedures
  • Dismissals
  • Dispute Resolutions
  • Employment Equity (EE)
  • HR Policies and Procedures
  • Labour Court
  • Labour Relations
  • Negotiations
  • Performance Management
  • Personnel Management
  • Policies and Procedures
  • Retrenchments
  • Skills Development (SD)
  • Strikes
  • Talent Management
  • Trade Unions

 


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