Outside legal representation at Disciplinary Hearings

Item 4 of the Code of Good Practice: Dismissal (The Code) contained in Schedule 8 of the Labour Relations Act (LRA) states that, when an enquiry is held into an employee's alleged misconduct

"The employee should be allowed the assistance of a trade union representative or fellow employee." It is on this basis that employers allow the accused to be represented by someone from inside the organisation. Employers have, on the other hand, traditionally disallowed external legal representatives to represent accused employees at disciplinary hearings.

In the case of NUMSA obo Thomas Murray and Roberts Alucast (2008, 2 BALR 134) the arbitrator found that the fraud-based disciplinary matter was not legally complex and therefore rejected the trade union's claim that the employee was entitled to be represented by an external trade union official instead of by a shop steward.The draft CCMA Guidelines: Misconduct Arbitrations states under item 60.3 that "An employee is not entitled to be represented by a trade union official (who is not employed by the employer) or a legal practitioner.

"Under item 70 these draft guidelines state that "If a disciplinary code permits the right to legal representation, this should be afforded. "However, neither the LRA nor the Code recognise an automatic right to legal representation."In the case of MEC: Department of Finance, Economic Affairs and Tourism: Northern Province v Schoon Godwilly Mahumani (Case number 478/03 SCA.

Report by Dr Elize Strydom distributed January 30 2005) the employee was refused the right to an external legal representative. The employee went to the High Court to dispute this ruling. The court found that the ruling of the presiding officer of the disciplinary was wrong and ordered that the employee be allowed to have legal representation at the disciplinary hearing.

The employer appealed against this judgement to the Supreme Court of appeal which decided that the accused employee at a disciplinary enquiry, could, under certain circumstances, be entitled to be represented by a legal representative at a disciplinary hearing. This court found that clause 2.8 of the employer's disciplinary code labelled the code as a guideline that may be departed from under appropriate circumstances.

This gave presiding officers the right to use their discretion in deciding whether to depart from the prohibition on legal representation.