LEGAL REPRESENTATION IN INTERNAL DISCIPLINARY HEARINGS November 2020

By MARC HUMPHRIES , Published in Employment Law - Feature

The Labour Relations Act (66 of 1995) (LRA) does not deal expressly with the question of whether legal representation should be allowed during disciplinary hearings. However, Item 4(1) of the Code of Good Practice contained in Schedule 8 of the LRA states that when an employee is charged with misconduct, "[t]he employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee". No mention of legal representation is made in the Code.

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In addition, our courts have consistently held that, unless the applicable disciplinary code provides otherwise, legal representatives are not entitled to appear on behalf of employees in internal disciplinary proceedings without the consent of the employer. Therefore, as a matter of general legal principle, an employee is not entitled to legal representation in internal disciplinary hearings as of right. In this regard, the Supreme Court of Appeal held in Commission for Conciliation, Mediation and Arbitration and Others v Law Society of the Northern Provinces (Incorporated as the Law Society of the Transvaal) (2013) 34 ILJ 2779 (SCA) that, "The courts have consistently denied entitlement to legal representation as of right in fora other than courts of law."

Having determined the entitlement to legal representation as of right, the next question to determine is whether the right to a fair hearing in general would nonetheless oblige the chairperson of such a disciplinary hearing to consider whether to allow legal representation in any event. The most often quoted authority in this regard is Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee and Others 2002 (5) SA 449 (SCA). In Hamata, the court dealt with disciplinary proceedings against a student of an academic institution, and considered the argument that employees have a general and unrestricted constitutional right to legal representation in all disciplinary proceedings. The court adopted the approach that there was no absolute right to legal representation in proceedings of a disciplinary nature, but any disciplinary body must be considered to still have the power to exercise a discretion to allow legal representation. In this regard, the court held that:

"There has always been a marked and understandable reluctance on the part of both legislators and the Courts to embrace the proposition that the right to legal representation of one's choice is always a sine qua non of procedurally fair administrative proceedings. However, 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, quasijudicial 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 important to note that, in Hamata, the court held that any rule requiring the outright rejection of requests for legal representation in all circumstances cannot be accepted. It held further that, in exercising his or her discretion to allow legal representation, the presiding officer should consider, inter alia, the following factors: (i) the factual or legal complexity raised by the charges, (ii) the potential seriousness of a possible finding against the accused employee and the prejudice the accused employee might suffer as result of not being permitted legal representation. Moreover, Grogan (Dismissal Third Edition, 2017) holds that other relevant considerations include the expertise of the person presenting the employer's case; the availability of other representatives; the status of the employee; and the fact that witnesses testifying for the employer might intimidate non-professional representatives. The Supreme Court of Appeal followed Hamata in the matter of MEC: Department of Finance, Economic Affairs & Tourism, Northern Province v Mahumani (2005) 2 All SA 479 (SCA) and, ultimately, held that in cases where an accused employee seeks legal representation, the presiding officer must give serious consideration to the request.

Whilst the aforegoing considerations are important, presiding officers should bear the following in mind:

  1. The Labour Court has repeatedly noted that the purpose of the Code is to permit disciplinary action to proceed with a minimum of legal formality.
  2. The mere fact that disciplinary proceedings may result in dismissal should not be a compelling factor in determining whether legal representation should be permitted, as it implies that every accused employee charged with allegations which could result in dismissal would, therefore, be entitled to legal representation.
  3. Whilst the parity of parties is an important consideration in matters which have factual or legal complexity, case law regarding the question of legal representation in internal disciplinary hearings does not dictate that there must be parity between the ability and expertise of the parties to a disciplinary hearing, but only require that the procedure should be fair (See for example, Volschenk & another v Morero (2011) 32 ILJ 983 (LC)).
  4. The Labour Court has declined to accept, as valid reasons justifying legal representation, the volume of the charges laid against an accused employee, or that the same set of facts may give rise to criminal and/or civil action against the accused employee.

Having regard to the aforegoing, an accused employee does not automatically have the right to a legal representative during a disciplinary hearing held at their workplace. However, the accused employee may bring a formal application prior to the hearing for the presiding officer to consider allowing a legal representative to assist the accused employee at the disciplinary hearing. When exercising such discretion, the presiding officer should take into account the factors discussed, and that the decision in respect of such an application is final, although the accused employee may still refer a dispute to the Commission for Conciliation, Mediation and Arbitration or applicable Bargaining Council for procedural unfairness.

Humphries is Regional Director: Legal, RSM South Africa.