The question is raised by employees and employers alike. Most employers’ disciplinary procedures do not allow for legal representation.
Normally, the notice to attend a disciplinary hearing stipulates that the employee has the right to be represented by a representative from the workplace. This is interpreted to mean that the employer has a policy prohibiting external representation.
There is no labour legislation that provides a right to legal representation to employees.
Schedule 8 of the Labour Relations Act 66 of 1995, titled Code of Good Practice: Dismissal (alternatively referred herein as “the Code”), broadly governs the procedural elements that need to be complied with when employers convene disciplinary hearings. 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
The Supreme Court of Appeal (alternatively referred to herein as “the Court”) has held that ‘only in cases where it is truly required in order to attain procedural fairness’ should legal representation be granted. Case law has therefore made a few things evident when it comes to legal representation in internal disciplinary hearings:
- There is no entitlement in law to be assisted or represented by a legal representative during an internal disciplinary hearing.
- The presiding chairperson has the discretion to consider and decide any request for legal representation.
- The chairperson should apply his or her 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.
- The chairperson should consider the factors listed under hereunder when making a decision regarding legal representation.
The position regarding legal representation, as mentioned, has been set out in case law. The Court has set out the following factors to be considered when deciding a request for legal representation:
- The nature of the charges brought;
- The degree of factual or legal complexity raised by the charges or involved in the hearing;
- The potential seriousness of the consequences of an adverse finding against the accused employee;
- The nature of the prejudice to the employer in permitting legal representation; and
- The nature of the prejudice to the accused employee in refusing legal representation.
Therefore, as a matter of general legal principle, an employee is not entitled to legal representation in internal disciplinary hearings as of right.
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.
