When should external counsel be permitted?

When should external counsel be permitted?

Ivan Israelstam

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 inquiry 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, normally disallowed external legal representatives to represent accused employees at disciplinary hearings.

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 hearing was wrong and ordered that the employee be allowed to have legal representation at the disciplinary hearing.

The employer appealed against this judgment to the Supreme Court of Appeal, which decided that the accused employee at a disciplinary inquiry 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. The hearing continued and the employee was dismissed. The CCMA found the dismissal to be fair in all respects. However, while the Labour Court agreed that the dismissal was substantively fair, it found the dismissal to be procedurally unfair. This was because the employer had refused to postpone the hearing. The court also 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".

This last finding appears at first glance to mean that employees at disciplinary hearings are automatically entitled to representation by outside parties such as union officials and lawyers. However, on closer scrutiny, this might not be what the court was saying. The court said that such representation was a right that employees must be given at "hearings". The court did not say "disciplinary hearings". Thus it is therefore possible that the court was referring to hearings in general and included hearings at the workplace, at CCMA and at court.

Should this have been the Labour Court's intention, then legal representation at internal disciplinary hearings need not be seen as an automatic right. However, it is not clear what the court in the Molope case meant and the Schoon decision still exists. Employers are therefore advised, when receiving applications for external representation, to consider whether:

  • 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 judgment 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 the 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, 082-852-2973 or via e-mail at [email protected] 
  • Our appreciation to Ivan and The Star newspaper for permission to publish this article


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