Our law firm was recently approached by a client who worked at a family business for over 24 years. She was informed of a disciplinary hearing on a charge of fraud. The Notice of Disciplinary Hearing informed her that she was entitled to representation by a colleague at the hearing. However, the total workforce of the company consisted out of only four people – two of which were her employers (husband and wife owning the business), our client, and a colleague who was a witness for the employer in the hearing.
Although our client was afforded the right to representation it was tantamount to no representation. We approached the employer with the request to represent our client, but the employer bluntly refused relying on a provision of their company policy which stipulated that external representation was prohibited at disciplinary hearings.
According to item 4 of the Code of Good Practice (“the code”), the definition of dismissal contained in Schedule 8 of the Labour Relations Act (“LRA”) states that, when an employee is charged with misconduct, “[t]he employee should be allowed… the assistance of a trade union representative or fellow employee”.
An employee does not automatically have the right to a legal representative during a disciplinary hearing held at their workplace. However, the employee may bring a formal application prior to the hearing for the presiding officer to consider allowing an external representative to assist the employee at the disciplinary hearing. Again, the presiding officer has a discretion to either refuse or allow representation. The presiding officer’s decision is final.
When exercising such discretion, the presiding officer should consider the following factors:
- The company policy;
- The serious nature and complexity of the matter (whether it is in respect of a point of law or the merits of the matter);
- The potential severity of the consequences of an adverse finding;
- The potential adverse effects on both parties, if legal representation is allowed in comparison to when it is not allowed.
The Highest Court of Appeal held that even when the employer’s disciplinary policy prohibits the use of an external representative, it may be allowed in certain circumstances. The court held that the employer’s policy must be viewed as a guideline, which may be departed from under appropriate circumstances. Therefore, ultimately leaving it to the presiding officers to decide.
In another matter, the Labour Court held that even though the dismissal of an employee who was charged with the unauthorised use of funds was substantively fair, the dismissal was procedurally unfair. The employee, prior to the disciplinary hearing, requested a postponement of the said hearing, in order to obtain an external representative as a fellow employee who had agreed to assist the accused employee decided to no longer assist shorty before the hearing. The employer however refused the postponement.
It is not illegal for an employer to have a policy prohibiting assistance from external representatives. However, should the employee wish to make use of external legal representation, a formal application should be made prior to the disciplinary hearing which request must be duly considered based on the abovementioned factors, as opposed to a mere outright denial of the request.
Although the presiding officer’s decision is final, the employee can still refer a dispute to the CCMA or the Labour Court (depending on the nature of the disciplinary charges) after the hearing or even in the event of a dismissal based on procedural unfairness.
Should the employee become so discouraged because of the refusal to allow legal representation and decide to resign rather than to attend the disciplinary hearing, he or she may still have other legal remedies due to constructive dismissal (being a resignation due to the fact that the employer made the working relationship intolerable). Employees should tread carefully with resignations such as the aforementioned as it could be found that they resigned to avoid the consequences of the disciplinary hearing. In the latter situation they will not be entitled to compensation.
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