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Home Wrong behaviour Discipline Should you allow employees to have legal representation at disciplinary hearings?

Should you allow employees to have legal representation at disciplinary hearings?

Ivan Israelstam

Item 4 of the Code of Good Practice: Dismissal - contained in schedule 8 of the Labour Relations Act (LRA) - states that, when an enquiry is held into an employee's alleged misconduct: "The employee should be allowed reasonable time to prepare the response and as well as the assistance of a trade union representative or fellow employee." However, usually employers don't allow external legal representatives to represent employees at disciplinary hearings because of the content of item 4 of the code and disciplinary hearings are seen as internal matters. However, this practice has come into question over recent years.

In the case of Blaauw vs Oranje Soutwerke (1998 3 BALR 254):

  • The employer was represented at a disciplinary hearing by an attorney. However, the employee wasn't allowed to bring an attorney to represent him.
  • The CCMA decided that the employee should've been allowed an attorney for two reasons:"

    - There was no-one suitable, among the employee's colleagues, to represent him.
    - The employer was represented by an attorney who prosecuted the case for the employer. It could thus be argued that the attorney was biased.
  • As the employer didn't allow the employee to have legal representation, the CCMA found the employee's dismissal to be procedurally unfair and awarded him seven months' remuneration in compensation.

In the case of MEC: Department of Finance, Economic Affairs and Tourism: Northern Province vs Schoon Godwilly Mahumani (Case number 478/03 SCA. Report by Dr Elize Strydom distributed 30 January 2005) the Supreme Court of Appeal decided that the chairperson of a disciplinary enquiry could, under certain circumstances, be entitled to be represented by a legal representative at a disciplinary hearing.

In this case:

  • The employee requested that he be allowed to bring a legal representative.
  • This request was denied on the grounds that such representation was prohibited by clause 7.3 of the disciplinary code and procedures for the public service. The presiding officer said that this code didn't give him discretion to allow legal representation.
  • The employee went to the High Court to dispute this ruling. The court found that the ruling of the presiding officer of the disciplinary was wrong and ordered that the employee be allowed to have legal representation at the disciplinary hearing.
  • The employer appealed against this judgement to the Supreme Court of Appeal. This court found that clause 2.8 of the employer's disciplinary code labelled the code as a guideline that may be departed from under appropriate circumstances. This gave presiding officers the right to use their discretion in deciding whether to depart from the prohibition of legal representation.

In my view, legal representation should be considered in situations where, among others:

  • The case is highly complex,
  • The consequences of an adverse finding could be serious,
  • There would be no significant prejudice to the employer if legal representation is allowed, and
  • The employee's ability to deal with the case is low in comparison to that of the employer.

The above findings have major consequences for employers engaging in disciplinary hearings. In particular:

  • An employee's request for legal representation can no longer be dismissed out of hand. While such requests must not always be granted, they must be given very careful consideration.
  • This, in turn, means that employers will need to ensure their presiding officers are highly skilled in chairing disciplinary hearings so they are able to:
    - Make the right judgment about allowing legal representation, and
    - Deal with the legal challenges posed by attorneys and advocates at disciplinary hearings.
  • Managers must be thoroughly trained in the disciplinary process and the employer must use genuine labour law experts to chair and/or prosecute hearings.