It is sometimes necessary 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 and CCMA findings that cast a different light on the matter.
Early last year, the matter was again addressed in SACCAWU obo Abrahams / Markhams  5 BALR 476 (CCMA).
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 (it needs to be noted that there is a difference between a union official and a shop steward. A union official is employed by the trade union, therefore an external representative, and a shop steward is an employee who has been elected by the workforce, therefore an internal representative, if the trade union is a representative union and recognised by the employer. In the absence of a representative trade union and elected shop stewards, employees must select another co-employee as an internal representative).
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 term “union official’ for explanatory purposes, could also read “legal representative/practitioner”.
The commissioner 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.
The commissioner 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 organisation, 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 organisation. The employer should 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 organisation or demand legal representation.
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 organisation – 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.