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Item 4 of the Code of Good Practice: Dismissal contained in schedule 8 of the Labour Relations Act states that when an inquiry is held into an employee’s alleged misconduct “the employee should be allowed ... the assistance of a trade union representative or fellow employee”.

This has traditionally disallowed external legal representatives to represent accused employees at disciplinary hearings.

The 2012 Commission for Conciliation, Mediation and Arbitration (CCMA) Guidelines: Misconduct Arbitrations states that an employee is not automatically entitled to external representation at a disciplinary hearing. This clearly implies that there are exceptional circumstances where the employee might be entitled to external representation. However, none of these documents lay down what those exceptional circumstances might be.

In the case of MEC: department of finance, economic affairs and tourism: Northern Province vs Schoon Godwilly Mahumani (case number 478/03 SCA. Report by Dr Elize Strydom distributed January 30 2005) the court decided that the accused employee at a disciplinary inquiry, could, under certain circumstances, be entitled to be represented by a legal representative at a disciplinary hearing. This court found that the employer’s disciplinary code labelled the code as a guideline that may be departed from under appropriate circumstances.

In the case of Molope vs Mbha (2005, 3 BLLR 267) the employee applied for a postponement in order to obtain another representative to replace the previous one who pulled out at the last minute, but the employer refused and the employee was dismissed. The Labour Court found the dismissal to be procedurally unfair and said that “it is now established that one of the requirements of a procedurally fair hearing embraces the entitlement of an employee to be represented thereat by a co-employee or a trade union official or a lawyer”. Other judges have since disagreed with this decision.

In view of the extreme contradictions in the law, as evidenced in the above reports, employers are advised, when receiving applications for external representation, to obtain expert labour law advice in considering whether their policies allow external representation and whether the complexity level of the case is high.

The employer will also need assistance in assessing the consequences of an adverse finding and whether there would be any significant prejudice to the employer if legal representation would be allowed. In addition, the employer must carefully assess whether an employee’s ability to deal with the case is low in comparison to that of the employer.

The above case findings have major consequences for employers engaging in disciplinary hearings. In particular, while employees’ requests for legal representation should not be granted in every case, they must be given very careful consideration. This, in turn, means that employers will need to ensure that their presiding officers are highly skilled in chairing disciplinary hearings. This is to be able to make the right judgment on whether to allow legal representation or not, and also to be able to deal with the legal challenges posed by attorneys and advocates at disciplinary hearings.

Managers must be thoroughly trained in disciplinary process and the employer must use genuine labour law experts to chair and/or prosecute hearings.

• Israelstam is CEO of Labour Law Management Consulting.

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