Item 4 of the Code of Good Practice: Dismissal (The Code) 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 the assistance of a trade union representative or fellow employee."

It is on this basis that employers allow the accused to be represented by someone from inside the organisation.

Employers have, on the other hand, traditionally disallowed external legal representatives to represent accused employees at disciplinary hearings.

In the case of NUMSA obo Thomas Murray and Roberts Alucast (2008, 2 BALR 134) the arbitrator found that the fraud-based disciplinary matter was not legally complex and therefore rejected the trade union's claim that the employee was entitled to be represented by an external trade union official instead of by a shop steward.

The draft CCMA Guidelines: Misconduct Arbitrations states under item 60.3 that "An employee is not entitled to be represented by a trade union official (who is not employed by the employer) or a legal practitioner.

"Under item 70 these draft guidelines state that "If a disciplinary code permits the right to legal representation, this should be afforded.

"However, neither the LRA nor the Code recognise an automatic right to legal representation."

In the case of MEC: Department of Finance, Economic Affairs and Tourism: Northern Province v Schoon Godwilly Mahumani (Case number 478/03 SCA. Report by Dr Elize Strydom distributed January 30 2005) the employee was refused the right to an external legal representative.

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 which decided that the accused employee at a disciplinary enquiry, could, under certain circumstances, be entitled to be represented by a legal representative at a disciplinary hearing.

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 on legal representation.

In the case of Molope v Mbha (2005, 3 BLLR 267) an area manager was dismissed for unauthorised use of funds and was brought to a disciplinary hearing.

The accused employee chose a colleague to represent her but, shortly before the disciplinary hearing this colleague decided not to represent Mbha.

The employee therefore applied for a postponement in order to obtain another representative but the employer refused and the employee was dismissed.

The Labour Court it found the dismissal to be procedurally unfair and said that "it is now established that one of the requirements of a procedurally fair hearing embraces the entitlement of an employee to be represented thereat by a co-employee or a trade union official or a lawyer."

In view of the extreme contradictions in the law as evidenced in the above reports employers are advised, when receiving applications for external representation to consider whether:

• Their policies allow external representation
• The complexity level of the case is high
• The consequences of an adverse finding could be serious
• There would be no significant prejudice to the employer if legal representation would be allowed
• The employee's ability to deal with the case is low in comparison to that of the employer.

The above case 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 that their presiding officers are highly skilled in chairing disciplinary hearings.

This is so as to be able to make the right judgement as to whether to allow legal representation or not and also to be able to deal with the legal challenges posed by attorneys and advocates at disciplinary hearings.

Managers must be thoroughly trained in disciplinary process and the employer must use genuine labour law experts to chair and/or prosecute hearings.

• Ivan Israelstam is chief executive of Labour Law Management Consulting. He can be contacted on 011 888 7944 or labourlaw@absamail.co.za
• Our appreciation to Ivan and The Star newspaper for permission to publish this article…

The South African Labour Guide is a private company and has no association with the Commission for Conciliation, Mediation and Arbitration (CCMA), you may find the CCMA on www.ccma.org.za