Is outside legal representation allowed at a disciplinary inquiry?

We often hear employees threatening to have their lawyer represent them at a disciplinary inquiry. In terms of Item 4 of the Code of Good Practice: Dismissal (The Code) contained in Schedule 8 of the Labour Relations Act, employees have certain rights during a disciplinary inquiry. One of these rights includes having a trade union representative or a fellow employee represent the accused employee during a disciplinary inquiry.

Neither the Labour Relations Act nor the Code of Good Practice provides outside legal representation. The question is whether there are certain circumstances where outside representation would be allowed.

Understanding the right to legal representation in disciplinary inquiries

Arbitrators at the CCMA have dismissed employee disputes for being afforded legal representation during a disciplinary inquiry, such is the case in NUMSA obo Thomas Murray and Roberts Alucast (2008, 2 BALR 134).

Where such instances arise, the employers’ disciplinary code should be consulted, and consistent action should be taken in line with the disciplinary code of conduct.

Employers should, however, be aware that their disciplinary code may be departed from, and sometimes there are situations that call for unique action to be taken.

This was the case in MEC: Department of Finance, Economic Affairs and Tourism: Northern Province v Schoon Godwilly Mahumani (Case number 478/03) SCA. An employee was refused the right to outside legal representation during the disciplinary inquiry. The employee was charged with the theft and disposal of five rhinoceroses at a game reserve.

Case Study

The employee took the matter to the High Court. The Court found that the decision not to allow the employee outside legal representation was wrong and that the employee should be afforded such representation. The reason for the Judge’s finding was based on the following:

“Clause 7.3(e) of the Code, in express terms, excludes outside legal representation and that it was not susceptible to an interpretation vesting a discretion in the presiding officer to allow legal representation at a disciplinary hearing. In this regard, they relied on the judgment by Wallis AJ in the Mosena case.
[8] Clause 2 of the Code provides:
‘2 The following principles inform the Code and Procedure and must inform
any decision to discipline an employee.
Disciplinary proceedings do not replace or seek to imitate court proceedings.
The Code and Procedures are guidelines and may be departed from in appropriate circumstances.’

[9] In the Mosena case, it was submitted that, in the light of clause 2.8, clause 7.3(e) of the Code should not be construed as an absolute prohibition against legal representation at a disciplinary hearing. Wallis AJ held that clause 2.8 is an injunction in regard to an employer’s general approach to discipline and should not be interpreted as authorising wholesale discretionary departures from the Code and procedures. It should be interpreted to only authorise departures where it would be necessary, by agreement or otherwise, to depart in some respect from the strict terms of the procedure. He found in clause 2.7, which provides that disciplinary proceedings do not replace or imitate court proceedings, a strong indication that the parties considered clause 7.3(e) to be a fundamentally important portion of their agreement.

[10] I agree with Wallis AJ that clause 2.8 is an injunction regarding the general approach that should be followed. I, furthermore, agree that clause 7.3(e) is a fundamentally important provision of the agreement and that it should not lightly be departed from. But, there may be circumstances in which it would be unfair not to allow legal representation (see Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee, and Others 2002 (5) SA 449 (SCA) at paras 12 and 13).”

Determining whether an employee is entitled to Legal Representation during a Disciplinary Inquiry

The employer appealed this ruling at the Supreme Court of Appeal, which confirmed that an employee should, in certain circumstances, be afforded outside legal representation.

The chairperson at the disciplinary inquiry, therefore, reserves the right to use their discretion in allowing external legal representation in certain circumstances.

The employer and chairperson should consider whether there are any policies that allow such legal representation, whether the matter at hand is complex, whether the outcome of the hearing could have a severe impact, and whether the employee’s ability to present their case is low in comparison with the employer’s ability.

It, therefore, becomes clear that employers or presiding officers should not summarily refuse an employee’s request for outside legal representation and that due consideration should be given to the particular merits of each case. An experienced chairperson ensures that an employer follows a procedurally fair disciplinary inquiry.

Please feel free to contact our offices on 0861 737 263 should you require any assistance, whether it be about assistance with your company policies or any queries or disciplinary inquiries.