Legal representation at in-house/internal employer disciplinary enquiries has been much debated due to the uncertainty as to whether an accused employee has the right to legal representation or not at such enquiries.
Employers have always adopted the position that because it is an internal process, external or legal representation is not permissible or allowed. Therefore, accused employees are normally not permitted to have an attorney representing them at internal disciplinary enquiries. An accused employee normally, in terns of the employer’s disciplinary procedure, has the right, among others, to be represented by a co-worker (colleague) or a shop steward. In both instances the representative must be an employee of the employer.
This position of employers have come under scrutiny in recent times and have raised the question whether it is fair of employers to refuse an accused employee external legal representation.
The courts have stated that simply to say ‘No’ to an employee’s request for legal representation, can amount to the entire process being unfair. At the very least, it has been stated that the chairperson has to consider a request for legal representation. However, this does not necessarily mean that an employer cannot refuse it?
Legal representation can be refused in the following situations:
- When the charges against the employee are simple and easy to understand (when the complexity level of the case is low).
- When the employer can prove the charges by leading straightforward evidence through what the employer’s witnesses have to say and through documents.
- When, during the course of the hearing, it would not be necessary to deal with legal issues (low complexity level).
- When the charges are not that serious and will only result in a written warning if the employee is found guilty (when the consequences of an adverse finding would not be serious).
- When the employee will not suffer or be at no disadvantage if he is not legally represented. This could be because of the fact that the managers dealing with the case are not legally trained themselves (when there would be significant prejudice to the employer if legal representation for the employee would be allowed).
- When the employee’s ability (or his internal representative’s ability) to deal with the case is comparable to that of the employer.
- When the employee being disciplined is the only person who will be impacted from the hearing.
This means that when an accused employee requests outside legal representation prior to the disciplinary enquiry, the employer must consider the request against the above-mentioned situations. It is advisable that the employer seeks legal advice before declining the request.
The accused employee could request legal representation at the disciplinary enquiry before commencement of the proceedings. The chairperson would then have to make a decision whether to permit legal representation after assessing the employee’s request against the above-mentioned situations. If the chairperson declines the employee’s request, he would have to give reasons for his decision.
- An employee’s request for legal representation can no longer be dismissed out of hand. While such requests must not always be granted, they must be given very careful consideration.
- This in turn means that employers will need to ensure that their chairpersons (presiding officers) are highly skilled in chairing disciplinary hearings. This is so as to be able to make the right judgement as to 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.
- MEC: Department of Finance, Economic Affairs and Tourism: Northern Province vs Schoon Godwilly Mahumani (Case number 478/03 SCA)
- Molope vs Mbha (2005, 3 BLLR 267)