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It is sometimes necessary for us to re-visit a topic on which previous articles have appeared because of changes that have come about - not necessarily changes in Labour law, but certainly changes occasioned by recent court judgments that cast a different light on the matter.
There are some topics where, despite any changes to labour legislation or despite any new judgments handed down, the topic never dies and the debate insists on raging on regardless. Such is the case with this issue of representation at disciplinary hearings. It is well over a year since we last addressed this matter, and this question is raised by delegates at almost every workshop that I present, and the frequency of the raising of this question proves that it is still a matter of great concern to employers – and indeed, also to employees facing disciplinary action.
Usually, the only reason the employee requests legal representation is because he will have “a better chance” if he has his attorney present, or he will be treated more fairly, or simply that he just does not trust the employer. Way back in November 2004, there was a landmark ruling by the Supreme Court of Appeal (SCA) in the matter of MEC Department of Finance, Economic Affairs and Tourism: Northern Province and another V Mahuani.
The employer's disciplinary code stated that in a disciplinary hearing, neither the employer nor the employee may be represented by a legal practitioner. In the light of this, the employee was refused legal representation at the disciplinary hearing.
The matter ended up at the SCA. The SCA determined that although the above-mentioned clause in the employer's disciplinary code should not be lightly departed from, there may be circumstances in which it would be unfair not to allow legal representation.
The SCA also noted a further consideration was the common law principle that a person does not have an absolute right to be legally represented before tribunals other than courts of law - and a disciplinary hearing is not a court of law - it is a civil internal process.
Further, common law does not require disciplinary hearings to be fair - and if “ in order to achieve fairness in a particular case, legal representation may be necessary, a disciplinary body must be taken to have been intended to have the power to allow it in the exercise of its discretion unless, of course, it has plainly and ambiguously been deprived of any such discretion." It was therefore found that it was very likely that it is intended that the chairperson of the hearing has a discretion to allow legal representation in circumstances in which it would be unfair not to do so.
In this matter it was said that the chairperson of a disciplinary hearing, when considering whether or not to legal representation should be allowed, should consider the following factors:
[a] the nature of the charges brought.[b] the degree of factual and legal complexity involved in the hearing (where the respondent may require legal assistance to argue for him)[c] the potential seriousness of the consequences of an adverse finding ; and[d] the nature of the prejudice to any employer in permitting legal representation, or[e] the nature of the prejudice to the employee in refusing legal representation.
There is nothing to prevent employers stipulating in their disciplinary code that representation from outside the organisation is not allowed. However, should the employee indicate that he wishes to have legal representation then the matter must be approached - as opposed to a simple outright denial of the request - and his request must be considered based on the above factors.
Employers must remember that there is nothing in any Labour legislation or case law indicating that the employee has an absolute right to legal representation or representation from outside the organization - it is a matter to be requested by the employee, fairly considered by the employer, and a decision must be made.
It follows also that with the discretion having been granted to the chairperson to consider and rule on such applications, that his decision should be final. If the employee wishes to appeal against his decision, the employee is free to refer a dispute of procedural unfairness to the CCMA or Bargaining Council upon completion of the disciplinary process.
We do hope that the above has brought you up to date on this matter, and should you have any further questions please contact
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