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The matter was again addressed in SACCAWU obo Abrahams / Markhams [2007] 5 BALR 476 (CCMA), heard on 9th January this year in arbitration at Bethlehem.
The referral included, among other things, a dispute of procedurally unfair dismissal on the basis that the applicant was denied permission to be represented at the disciplinary hearing by an official from the trade union, the applicant alleging that because of this refusal by the employer, she was left with no option but to walk out of the hearing, which proceeded in her absence.
The disciplinary hearing was held on11th April 2006, and the employee arrived at the hearing accompanied by an official of SATAWU. The employer party informed the union official and the respondent that, for various reasons, representation by a union official was not allowed.
The applicant requested the hearing to be postponed to enable her to arrange another representative. After a 90 minute postponement, the applicant returned to the hearing with another union official, and it was once again explained by the employer that representation by a union official is not allowed at in-house disciplinary hearings.
The respondent referred the applicant to the notice of disciplinary hearing, in which it was clearly stated that she was entitled to the assistance of a representative or fellow employee or shop steward from her place of work. The notice clearly stated that lawyers were not permitted.
The notice stated further that the representative could be either a shop steward in the same or a nearby establishment of the employer, or a colleague in the same or nearby establishment. After some argument, the applicant and the representative decided to walk out of the disciplinary hearing.
The disciplinary hearing continued in her absence, and the outcome of the hearing was that the applicant be dismissed from her employment. The applicant's main argument regarding representation was that she was "denied her legal right to be represented by a union official of her own choice."
The arbitrator observed that the provisions regarding employee representation at disciplinary hearings in Schedule 8 - the Code of Good Practice Dismissal - obviously did not include union officials and legal practitioners - the reason, equally obviously, is because internal disciplinary proceedings must be dealt with the minimum of legal formalities.
In NUMSA v Transvaal Pressed Nuts, Bolts & Rivits (Pty) Ltd (1988) 9 ILJ 457 (IC), it was clearly stated that " a union has no clear right to demand representation by officials for members at disciplinary hearings unless agreed upon to the contrary."
In MAWU v Bell Equipment Co, it was stated inter alia that " it is only where a recognition agreement provides specifically for such representation (i.e. by a union official or other person who is not an employee of the employer) that there would be a clear right in the employee to be so represented."
The arbitrator noted that the employer's rules regarding representation at disciplinary hearings were quite clear and explicit - and he found that these rules had been adequately conveyed to the respondent employee at the time of the disciplinary hearing.
He therefore ruled that on the basis of employee representation, the dismissal was procedurally fair.
In addition, it also found that the applicant's referral was frivolous and vexatious - that she had submitted a referral to the CCMA in the full knowledge that outside representation was not permitted, and therefore in the full knowledge that she, in fact, had no case. As a result, the applicant and the union SATAWU were ordered to pay the costs of the CCMA, and the costs incurred by the respondent.
From the above, it would seem that employers are entitled to have rules regulating employee representation at disciplinary hearings. It is equally obvious that employees do not have an automatic legal entitlement to be represented by a person other than an employee of the employer.
Should an employee wish to have representation by a person other than an employee of the organization, they must submit a proper application to the employer, requesting such outside representation, and stating the reasons for it - stating the reasons why they cannot utilise a representative from within the organization. The employer will consider the application, and make a decision.
If the employee does not submit such a request to the employer prior to the disciplinary hearing, the employee has no right to simply arrive at the disciplinary hearing accompanied by a representative from outside the organization.
For further information, contact
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