WORKERS IN DISCIPLINARY HEARINGS MAY HAVE LEGAL REPRESENTATION AT THEIR SIDE
The following article was published in Beeld, 01 December 2004 and written by Philip de Bruin
No government institution, company or other organisation may henceforth summarily refuse workers to be assisted by legal representatives in disciplinary investigations against workers.
This “radical amendment to the labour law follows a unanimous verdict by a full bench of five appeal judges on 30 November 2004. Even if the disciplinary code of any institution explicitly stipulates that no one may have legal representation during disciplinary hearings, no chairman of a disciplinary committee may on the strength of such a stipulation refuse a worker to appoint his own legal representative for a disciplinary hearing.
Appeal judges C. Patel, P. Streicher, M. Navsa, B. Jafta and V. Ponan ruled that presiding officials at disciplinary hearings must in future give hearing to and consider a worker’s request for legal representation in terms of common law and the Promotion of Fair Administrational Conduct Act, “with a view to give the worker a fair disciplinary hearing”.
If the chairman still refuses the worker to appoint his/her own legal representative, the worker has the option to approach the high court with a request for an urgent interdict for the disciplinary hearing to be discontinued until he/she (the worker) has a chance to take the chairman’s decision to the high court.
The appeal court has given general indications which must be regarded as important by a chairman in his decision-making about legal representation. This includes the nature of the complaints against the worker, the nature of the complexity of the factual and legal questions in the proceedings, the possible seriousness of the consequences of finding the worker quilty and any disadvantage that may be suffered by the employer if legal representation is allowed.
Mr. Jan Stemmet, one of the foremost labour experts and joint-chairman of the Law Society of South Africa, says in his reaction to the verdict that all companies and government institutions of which the disciplinary codes stipulate that legal representation at disciplinary hearings is not allowed, “will have to look very, very carefully at their codes today.” “The verdict could make disciplinary hearings very complicated, drawn out and expensive for companies. If the worker has legal representation, the company too, for example, will clearly have to have legal representation. The old system of disciplinary hearings, as South Africa knows it, has been defeated by this verdict. It is radical and significant ruling based on the fairness of disciplinary hearings. I suspect that the verdict may spread to other judicial labour institutions where legal representation is not currently allowed.”
Subscribe to:
Post Comments (Atom)
Our normal work hours are from 8:00 to 17:00 Monday to Friday with an hour's worth of unpaid lunch - 8 paid for working hours in total. We are told that it has been Government Gazetted (ie. it is now law - and we dare not challenge/question this) that we do not have to get paid overtime if we worked from 7:30 (half an hour before the time) or if we worked to 17:30 (half an hour after the end of the normal day). Is this true or is it just a case of an employee wanting to have work done and not pay for it? Let's do the math on this. We are about 400 technicians in the field. Let's say 10% of us (40 technicians) work from 17:00 to 18:00 (in reality, it's more like 33% of us work those hours). We get paid overtime from 17:30 to 18:00. Half an hour. This means that CEB only pays out for 20 hours of extra work done per day and not for 40 hours of extra work done per day. I recently challenged my boss about this for the umptieth time. The argument got heated and he had me in for a diciplanary hearing. This hearing found me guilty of gross insolence and I was fired. I am not sure that I want my job back. What I would like to know is would I be successfull in going to the SAPS and opening a fraud case against CEB? Fraud because I believe that CEB is defrauding the technicians by telling them that they are acting accoding to the law. Another thing. In the hearing, I was not allowed to bring in any outside leagal representation. This would be against company policies. I could ask any person working in CEB to defend me but no outside representation was allowed. The company however employed a company called Labour Net to chair all their hearings for them.
ReplyDeleteThank you.
Neil Vermeulen
NeilV@ocv.co.za