In terms of item 4 of the Code of Good Practice as contained in schedule 8 of the Labour Relations Act 55 of 1996 (“LRA”), an employee at any disciplinary hearing is entitled to be assisted by either a trade union representative or a fellow employee and in most cases employees are denied external legal representatives at disciplinary hearings on this basis, as the LRA does not expressly provide for a  right to legal representation, but rather appears to exclude such a right by defining a closed list of who may assist an employee pursuant to a disciplinary enquiry.

As such, most employers are uncertain as to whether they can simply adopt a position that legal representation is not permissible and refuse legal representation for disciplinary hearings, as such a right is not expressly provided for by the LRA, or whether an accused employee has a right to external legal representation.

The general principle is that when an employee requests external legal representation, an employer cannot simply refuse as this can potentially amount to the procedure followed being unfair and at the very least, the employer should allow the chairperson at the hearing to consider the request for legal representation.

The chairperson will most likely refuse such a request if one or more of the following circumstances are present (See Molope v Mbha [2005] 3 BLLR 267):

1. Where the level of complexity of the charges against the employee is low and therefore easy and simple for the employee to understand.
2. Where the employee will most likely not suffer any prejudice as a result of lacking legal representation.
3. Where the employee’s ability to deal with the hearing is comparable with the employer’s ability.
4. When the employer can prove the charges against the employee by leading straightforward evidence through witnesses and documentation.
5. Where the charges are not of a serious nature and will only result in written warning.
6. Where the charges levelled against the employee do not require delving into legal issues.
7. Where the accused employee is the only one who will be impacted by the hearing.

In Volschenk and Another v Morero and Others [2011] 32 ILJ 938 (LC) the Court dealt with the issue of legal representation in the context of the employee’s urgent application for an interdict suspending the employee’s disciplinary hearing pending a review of a ruling made by the chairperson which ruling denied the employees the right to be legally represented at the disciplinary hearing.

The Court held that the employer has a duty to hear the employees’ application for legal representation at the disciplinary hearing even if the employer’s disciplinary procedure prohibits legal representation due to the fact that “the essential requirement by which the need to permit legal representation is evaluated is whether fairness necessitates it”.

The employees argued that the chairperson should have exercised his discretion to allow the employee legal representation based on the fact that the employer has appointed a legal professional which, according to the employees, resulted in the employer being more competent in relation to the proceedings as compared to them because they were not legally trained. The Court added that the charges levelled against the employee were of a complex nature, which would be a factor supporting the employee’s need for legal representation however, the Court held that the employees were not entitled to legal representation on the view that the employees would not suffer any prejudice if they are not legally represented and could therefore be represented by a fellow employee or trade union representation.

The Court concluded that despite the fact that the employees were charged with conduct relating to fraud, the charges did not create an issue which necessitated legal experts. The Court also held that the employees would be capable of competently addressing the charges.

It is therefore imperative for employers when considering an accused employee’s request for representation to give regard to the following:

1. Whether the employer’s policies allow for external representation.
2. Whether there would be significant prejudice to the employer if the employee is allowed legal representation.
3. Whether the employee has the ability to deal with the case as compared to the employer.
4. The complexity level of the charges levelled against the accused employee.
5. The seriousness of the consequence of an adverse finding.

It is therefore clear from the above that where a request has been made by an employee for legal representation in a disciplinary hearing the employer has a duty to give the request careful consideration in order to avoid a finding of an unfair dismissal following a flawed procedure. The employer also has to ensure that the presiding chairperson is skilled to deal with the legal challenges of legal representation in a disciplinary hearing.

Author
(Ntombi Baloyi – Candidate Attorney)