17 November 2023
Most employers' disciplinary procedures and codes do not allow for legal representation. Generally, either the notice to attend a disciplinary inquiry will expressly state that no outside representation is permitted, or it will stipulate that the employee has the right to be represented by a representative from the workplace or if they are members of a union, a shop steward. This is interpreted 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
The case law has concluded that employees are permitted to apply to the Chairperson, requesting that they be allowed to be represented by a legal representative. The Chairperson should consider the application, who can grant or deny the request. The fact that an employer has a policy prohibiting external representation does not prevent the employee from bringing an application to be represented.
This was addressed by the Supreme Court of Appeal in MEC: Department of Finance, Economic Affairs and Tourism: Northern Province v Mahumani. The facts of the case were as follows: 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 and that the Chairperson exercise his discretion and make a ruling and held that a presiding Chairperson must apply his or her mind to the request and not simply refuse the request as a result of the employer’s policy prohibiting 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.
