Schedule 8 of the Labour Relations Act (LRA) provides the employee the right to representation in a disciplinary hearing. An employee is entitled to be represented by a fellow colleague or a recognised trade union representative. The question arises if the employee requests representation from an external person, whether such representation should be considered and allowed. Such external representation could include legal representation or representation from an unrecognised union.
An employee does not have an automatic right to legal representation. Therefore, the employee will need to apply for such representation beforehand. A company should be careful to summarily deny legal representation. This is also the case if the company policy clearly states that no external legal representation will be allowed in a disciplinary hearing. While such requests must not always be granted, they must be given very careful consideration. Some factors to be taken into consideration are:
- The policies of the company.
- The complexity level of the case and also if the dispute is one in law or in the merits of the matter.
- The possibility of adverse effects on the employer and the serious nature of the offence.
- The possibility of any prejudice towards the employer if the representation is allowed e.g. the employer’s lack of representation in the matter.
As seen in the case of MEC Department of Finance, Economic Affairs and Tourism and another v Muhami, the employer’s disciplinary code stated that in a disciplinary hearing, neither the employer nor the employee may be represented by a legal practitioner. In light of this, the employee was refused legal representation at the disciplinary hearing. The matter ended up at the Supreme Court of Appeal, where the court determined that although the above-mentioned clause in the employer’s disciplinary code should not be lightly departed from, there may be circumstances in which it would be unfair not to allow legal representation.
Representation by an Unrecognised Union
The matter was addressed in the case of SACCAWU obo Abrahams v Markhams where the employee was denied representation by an unrecognised union official. The Arbitrator in this matter found that Schedule 8 of the Code of Good Practice does not include the right of an employee to be represented by a legal representative or a union official. The reason being that a disciplinary hearing is an internal process and therefore must be dealt with minimum legal formalities and or complexities.
A union official only has the automatic right to represent his or her members if there was an agreement already in place. Such agreement is may refer to a recognition agreement between the company and the union.
The employee does have the right to representation in a disciplinary hearing. However, this right is limited to an internal representative. If the employee requires external representation, the employee should submit a formal application. This should include the justification for the external representation as well as why no internal representation can be utilised. The company then has the obligation to properly consider such a request.
If the employee does not submit such a request prior to the disciplinary hearing, the employer may disallow such representation as the company was not afforded the opportunity to consider the request.
ABOUT THE AUTHOR
Darius Brits obtained his LLB degree form the University of Pretoria. He is currently a SEESA Labour Legal Advisor.