Some employees wonder if they are permitted to have their Attorney represent them during an internal disciplinary hearing. Unfortunately, no labour legislation provides this right to employees. Schedule 8 of the Labour Relations Act 66 of 1995 (“LRA”) titled the Code of Good Practice: Dismissal (hereinafter referred to 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 Code further provides that an employee may also be assisted by a shop steward. In cases where employees are not represented by trade unions, it has been argued that employees should be permitted to be represented or assisted by a legal representative during a disciplinary hearing, The position regarding this ask has been set out in case law. What case law has concluded is that employees are permitted to bring an application to the presiding Chairperson, requesting that they be allowed to be represented by a legal representative. This application should be considered by the Chairperson who has the discretion to grant or deny the request.
Employers may have policies stating that employees may not be represented by legal representatives during any internal process. Whilst employers are empowered to convey what is deemed acceptable to them, the fact that an employer has a policy outlining this stance should not prohibit an employee from bringing an application of this nature to the Chairperson’s attention. Specifically, case law has held that where an employer has a policy prohibiting external representation, this does not preclude the respective employee from bringing an application in this regard to the presiding Chairperson. This approach was confirmed in the Supreme Court of Appeal matter of MEC: Department of Finance, Economic Affairs and Tourism: Northern Province v Mahumani which was delivered in November 2004.
The facts of the MEC case were as follows: The employee was the subject of a disciplinary hearing. At the commencement of the hearing, the employee applied for legal representation which was denied based solely on the fact that the Employer’s Code prohibited legal representation in internal proceedings. The employee then launched a review of this decision by the Chairperson. The review was successful, and the Court held that the employee was entitled to be legally represented. The employer then appealed this decision. The Supreme Court of Appeal agreed with the initial Court in some respect but held that it was not for the Courts to decide the application for legal representation, but that this decision needed to be made by the presiding Chairperson exercising his or her discretion. 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.
What this case confirms is that the 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.
The Supreme Court of Appeal matter of Hamata and another v Chairperson, Peninsula Technikon Internal Disciplinary Committee which was decided in 2002 set out the factors to be considered by a Chairperson when deciding a request for legal representation. Hamata sets out that the factors to be considered include:
- The factual or legal complexity raised by the charges;
- The potential seriousness of the possible finding against the accused employee; and
- The prejudice that the accused employee might suffer as a result of not being permitted legal representation.
Hamata established the threshold to be used when evaluating a request for legal representation. Specifically, in Hamata, the Court held that ‘only in cases where it is truly required in order to attain procedural fairness’ should legal representation be granted. Legal representation should therefore be allowed in circumstances where, if not allowed, the proceedings may be considered procedurally unfair. In other words, the application for legal representation should be so entrenched with the procedural elements providing for a fair process that, in its absence, the process will necessarily be unfair. This view was affirmed in the 2016 case of Ming v MMI Group Ltd & Another.
Case law has therefore made a few things evident when it comes to legal representation at 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.
- As per Hamata, there are certain factors that a Chairperson should consider when making a decision regarding legal representation.
Employees who wish to be legally represented during internal processes should bring these applications prior to or at the commencement of the disciplinary hearing. Employees should be guided by the factors outlined in Hamata when making submissions as to why they should be allowed legal representation. Employers have a right to make submissions in response to any request for legal representation and should equally look to address the factors outlined in Hamata as opposed to simply stating that it has a policy prohibiting external representation.