Representation at a Disciplinary Hearing

 

It is a requirement for procedural fairness for an employee to be assisted by a fellow employee or a trade union representative at a disciplinary hearing.

 

1. Representation by a fellow employee

 

• Schedule 8 to the Labour Relations Act 66 of 1995 (LRA), the Code of Good Practice: Dismissal (the Code) provides that employees are entitled to be assisted by a fellow employee during disciplinary hearings at the workplace. The employee needs to be informed of this and of the fact that it is his/her responsibility to make arrangements for such representation if it is required.

 

• If the employee wishes to arrange for the release of his/her representative to attend the enquiry, s/he needs to notify management at least 24 hours before the time of the hearing.

 

2. Representation by a trade union representative (shop steward)

 

• The Code provides that employees are entitled to be assisted by a trade union representative (shop steward). However, this only applies if a registered trade union has been granted organisational rights to have elected shop stewards for this purpose.

 

• A trade union representative who does not satisfy this criterion may only assist the employee if s/he is a fellow employee. Under these circumstances, the employee must be made aware of the procedure that needs to be followed as discussed under item 1 above.

 

3. Representation by a labour consultant or legal representative

 

• The Code does not mention whether the employee may be assisted by an attorney, an advocate or by a labour consultant during disciplinary proceedings.

 

• Sometimes, a contract of employment, disciplinary code or a collective agreement will state who may represent an employee during disciplinary proceedings at the workplace, in which case, this should be applied.

 

• Traditionally disciplinary codes or collective agreements are based on the view that workplace discipline is a function of line managers and that representation of employees should therefore also be limited to fellow employees or shop stewards.

 

• Furthermore, as most line managers do not have any legal background, in the interest of fairness, it has not been considered advisable to allow employees legal representation at workplace proceedings.

 

• According to our courts there is no general and unrestricted constitutional right to legal representation at disciplinary proceedings.

 

• However, where a disciplinary code or a collective agreement does not allow for legal representation at disciplinary proceedings, this does not prevent an employee from requesting this.

 

• According to the courts, in order for disciplinary proceedings to be fair, it is necessary for the person presiding over the hearing to allow and consider a request for representation based on the company procedures, the comparative ability of the parties, and-
  • the nature of the allegations against the employee;
  • the factual or legal complexity raised by the allegations;
  • the potential seriousness of a finding against the employee; and
  • the prejudice that an employer may suffer in permitting legal representation.

 

4. Disciplinary action against a trade union official

 

• The Code provides that where disciplinary action may be taken against an employee who is a trade union representative, office bearer or official of a trade union, this should not happen without first informing and consulting the trade union.

 

• While the Code is silent on whether this should be extended to allowing representation by a trade union official who is not employed by the employer, it is suggested that the same considerations that apply to legal representation should apply here.

 

5. General

 

• While there is no automatic right to representation during a workplace disciplinary hearing by a person other than those listed in a collective agreement, contract of employment, disciplinary procedures or the Code, it may be manifestly unfair for a the person chairing the hearing to dismiss such a request without first having applied his/her mind to the particular circumstances of the case.

 

• The guidelines set out above would also apply to an incapacity hearing.