Item 4 of the Code of Good Practice: Dismissal, contained in Schedule 8 of the Labour Relations Act (LRA), deals with some of the key aspects of dismissals based on misconduct. More specifically, The Code of Good Practice states the following: “The employer should notify the employee of the allegations against him, allow the employee a reasonable opportunity to prepare, to state their case in response to the allegations and that the employee should be entitled to the assistance of a trade union representative or fellow employee.”
The situation that commonly arises, is where an employee indicate that he does not want to be represented by a fellow employee but rather wants to be represented by an external representative of his choice. Should this application be considered and should the external representative be allowed?
In terms of the LRA it is clear that an employee does not have an automatic right to an external legal representative representing him at a disciplinary hearing. This, however, does not mean that the company and or chairperson can automatically deny the employee the opportunity to be represented by such external representative. As can be seen in the case of MEC: Department of Finance Economic Affairs and Tourism: Northern Province v Mahumani  2 BLLR 173 (SCA) where the court held that an employee could under certain circumstances, be entitled to the right of legal representation at a disciplinary hearing. The court held that even though the disciplinary code of the company stated no legal representation will be allowed, the employer’s disciplinary code was a guideline and that in appropriate circumstances it might be deviated from. As such, the disciplinary hearing chairperson had the right to use their discretion in deciding whether to depart from the prohibition on legal representation.
In the matter of Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee and Others 2002 (5) SA 449 (SCA), the court dealt with disciplinary proceedings against a student of an academic institution, where the relevant rule regarding representation read: The student may conduct his/her own defence or may be assisted by any student or a member of staff of the Technikon. ….‘. The court considered whether the tribunal retained the discretion to allow legal representation. The court, per Marais JA, said: “…It is equally true that with the passage of the years there has been growing acceptance of the view that there will be cases in which legal representation may be essential to a procedurally fair administrative proceeding. In saying this, I use the words ‘administrative proceeding’ in the most general sense, ie to include, inter alia, quasi-judicial proceedings. Awareness of all this, no doubt, accounts for the cautious and restrained manner in which the framers of the Constitution and the Act have dealt with the subject of legal representation in the context of administrative action. In short, there is no constitutional imperative regarding legal representation in administrative proceedings discernible, other than flexibility to allow for legal representation but, even then, only in cases where it is truly required in order to attain procedural fairness.”
It is, therefore, clear from the case law that if the employee indicates that he wants to have external representation, either the employee or the representative will need to apply for such representative to be allowed to take part in the proceedings, before the commencement of the hearing. It will then be the duty of the chairperson to carefully consider the application and make a ruling – if a representative will be allowed to represent the employee or not.
The rights of the employee to be represented at a hearing is regulated by the LRA, which states that any employee is allowed to be represented by a trade union representative or fellow employee. This, however, does not mean that an employee will not be entitled to have external representation. If the employee wants to represented by an external representative, he/she or the representative will have to submit a formal application, before the commencement of the hearing, to show good cause as to why the representative should be allowed to partake in the process. It will then be the duty of the chairperson to carefully consider the application and make a ruling.
ABOUT THE AUTHOR
Andre Swanepoel obtained his LLB degree from the North West University in 2012 and was admitted as an attorney in 2015. He joined SEESA on 1 March 2017 and is currently employed as a legal advisor at our Pretoria office.