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0861 737 263                ADMIN@INVICTUSGROUP.CO.ZA

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IS OUTSIDE LEGAL REPRESENTATION ALLOWED AT A DISCIPLINARY INQUIRY?

6 April 2023

We often hear employees threatening to have their lawyer represent them at a
disciplinary inquiry. In terms of Item 4 of the Code of Good Practice: Dismissal
(The Code) contained in Schedule 8 of the Labour Relations Act, employees have
certain rights during a disciplinary inquiry. One of these rights includes
having a trade union representative or a fellow employee represent the accused
employee during a disciplinary inquiry.

Neither the Labour Relations Act nor the Code of Good Practice provides outside
legal representation. The question is whether there are certain circumstances
where outside representation would be allowed.

UNDERSTANDING THE RIGHT TO LEGAL REPRESENTATION IN DISCIPLINARY INQUIRIES

Arbitrators at the CCMA have dismissed employee disputes for being afforded
legal representation during a disciplinary inquiry, such is the case in NUMSA
obo Thomas Murray and Roberts Alucast (2008, 2 BALR 134).

Where such instances arise, the employers’ disciplinary code should be
consulted, and consistent action should be taken in line with the disciplinary
code of conduct.

Employers should, however, be aware that their disciplinary code may be departed
from, and sometimes there are situations that call for unique action to be
taken.

This was the case in MEC: Department of Finance, Economic Affairs and Tourism:
Northern Province v Schoon Godwilly Mahumani (Case number 478/03) SCA. An
employee was refused the right to outside legal representation during the
disciplinary inquiry. The employee was charged with the theft and disposal of
five rhinoceroses at a game reserve.

CASE STUDY

The employee took the matter to the High Court. The Court found that the
decision not to allow the employee outside legal representation was wrong and
that the employee should be afforded such representation. The reason for the
Judge’s finding was based on the following:

“Clause 7.3(e) of the Code, in express terms, excludes outside legal
representation and that it was not susceptible to an interpretation vesting a
discretion in the presiding officer to allow legal representation at a
disciplinary hearing. In this regard, they relied on the judgment by Wallis AJ
in the Mosena case.
[8] Clause 2 of the Code provides:
‘2 The following principles inform the Code and Procedure and must inform
any decision to discipline an employee.
2.7
Disciplinary proceedings do not replace or seek to imitate court proceedings.
2.8
The Code and Procedures are guidelines and may be departed from in appropriate
circumstances.’

[9] In the Mosena case, it was submitted that, in the light of clause 2.8,
clause 7.3(e) of the Code should not be construed as an absolute prohibition
against legal representation at a disciplinary hearing. Wallis AJ held that
clause 2.8 is an injunction in regard to an employer’s general approach to
discipline and should not be interpreted as authorising wholesale discretionary
departures from the Code and procedures. It should be interpreted to only
authorise departures where it would be necessary, by agreement or otherwise, to
depart in some respect from the strict terms of the procedure. He found in
clause 2.7, which provides that disciplinary proceedings do not replace or
imitate court proceedings, a strong indication that the parties considered
clause 7.3(e) to be a fundamentally important portion of their agreement.

[10] I agree with Wallis AJ that clause 2.8 is an injunction regarding the
general approach that should be followed. I, furthermore, agree that clause
7.3(e) is a fundamentally important provision of the agreement and that it
should not lightly be departed from. But, there may be circumstances in which it
would be unfair not to allow legal representation (see Hamata and Another v
Chairperson, Peninsula Technikon Internal Disciplinary Committee, and Others
2002 (5) SA 449 (SCA) at paras 12 and 13).”

DETERMINING WHETHER AN EMPLOYEE IS ENTITLED TO LEGAL REPRESENTATION DURING A
DISCIPLINARY INQUIRY

The employer appealed this ruling at the Supreme Court of Appeal, which
confirmed that an employee should, in certain circumstances, be afforded outside
legal representation.

The chairperson at the disciplinary inquiry, therefore, reserves the right to
use their discretion in allowing external legal representation in certain
circumstances.

The employer and chairperson should consider whether there are any policies that
allow such legal representation, whether the matter at hand is complex, whether
the outcome of the hearing could have a severe impact, and whether the
employee’s ability to present their case is low in comparison with the
employer’s ability.

It, therefore, becomes clear that employers or presiding officers should not
summarily refuse an employee’s request for outside legal representation and that
due consideration should be given to the particular merits of each case. An
experienced chairperson ensures that an employer follows a procedurally fair
disciplinary inquiry.

Please feel free to contact our offices on 0861 737 263 should you require any
assistance, whether it be about assistance with your company policies or any
queries or disciplinary inquiries.

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