Legal representation in a disciplinary hearing is generally not permitted under most employers’ disciplinary procedures and codes. Typically, the notice to attend a disciplinary inquiry will either expressly state that outside representation is not permitted or stipulate that the employee may be represented by a fellow employee or, if they are a union member, a shop steward. This is generally understood to mean that the employer has a policy prohibiting external representation.
The Code of Good Practice
Schedule 8 of the Labour Relations Act 66 of 1995, namely, The Code of Good Practice: Dismissal, governs the procedural elements that need to be complied with when employers convene disciplinary hearings and in terms of rights to representation, the Code sets out that: “Every employee has the right to appoint a fellow employee representative of his/her choice”.
While there is no entitlement in law to be assisted or represented by a legal representative during an internal disciplinary hearing, it has been argued that employees should be permitted to be represented or assisted by a legal representative during a disciplinary inquiry; this argument is supported by case law.
Economic Affairs and Tourism: Northern Province v Mahumani
Case law has established that employees may apply to the Chairperson for legal representation in a disciplinary hearing. The Chairperson must consider the application and exercise their discretion in deciding whether to grant or deny the request. The fact that an employer has a policy prohibiting external representation does not prevent an employee from making such an application.
This was addressed by the Supreme Court of Appeal in MEC: Department of Finance, Economic Affairs and Tourism: Northern Province v Mahumani. At the commencement of the inquiry, the employee applied for legal representation, which was subsequently denied because the Employer’s Code prohibited legal representation in internal proceedings. The employee then launched a review of the decision. The review was successful, and the Court held that the employee was entitled to be legally represented.
The Supreme Court of Appeal accordingly ordered that the matter be remitted to the presiding Chairperson for the Chairperson to exercise their discretion and make a ruling. The Court held that a presiding Chairperson must apply their mind to the request and cannot simply refuse it on the basis that the employer’s policy prohibits external representation.
Insights from Hamata and Another v Chairperson
In the matter of Hamata and another v Chairperson, Peninsula Technikon Internal Disciplinary Committee, the Supreme Court of Appeal held: “Only in cases where it is truly required to attain procedural fairness should legal representation be granted”. The Court further set out the factors to be considered by a Chairperson when deciding a request for legal representation; these considerations are summarised as follows:
- The factual or legal complexity raised by the charges;
- The potential seriousness of the possible finding against the accused employee and
- The accused employee might suffer prejudice due to not being permitted legal representation.
The Court established the threshold to be used when evaluating a request for legal representation. Legal representation should, therefore, be allowed in circumstances where, if not allowed, the proceedings may be considered procedurally unfair.
If an employee wishes to be represented by a legal representative, they cannot merely request the same; their submissions should be guided by the factors outlined in Hamata as to why they should be allowed legal representation. Employers also have a right to submit in response to any request for legal representation. They should also address the factors outlined in Hamata and not simply state that it has a policy prohibiting external representation.
While there is nothing to prevent employers from stipulating in their disciplinary code that representation from outside the organisation is not allowed, should the employee indicate that they wish to have legal representation, the Chairperson should apply their mind to the application for legal representation and should not simply refuse such an application based on the fact that the employer has a policy prohibiting external representation.
If you would like to learn more about your legal rights during disciplinary hearings, please do not hesitate to contact us.
