One of the fundamental rights of an employee called to appear before a disciplinary enquiry is right of representation. In order for an enquiry into misconduct to be procedurally fair, the accused employee must be informed of this right and be allowed to select a representative. The question arises, as to whom an employee may call upon to represent them at an enquiry. A common trend in the disciplinary procedures of employers is to restrict representation to another employee. This restriction may raise challenges during a disciplinary enquiry.
For example, an accused employee may request to be represented by an employee who is not employed at the same site. Here much will depend on the reasonableness of the request. The accused employee based in Cape Town might request an employee from Pretoria to represent him. Depending on the circumstances, it may be deemed unfair if the accused is not allowed representation by a colleague who works at a different site. An obvious solution to this problem is for the employer to stipulate in the disciplinary procedure, that any representatives selected must work at the SAME workplace.
In unionised workplaces, shop stewards (trade union representatives) are often called upon to assist union members in disciplinary enquiries. This is entrenched in Section 14 of the LRA 66 of 1995. It is worth noting that an employee does not have to be a union member in order to be assisted by a shop steward at an enquiry (the shop steward is a work colleague of the non-union member).
What happens when a shop steward is being disciplined? In terms of Section 4(2) of Schedule 8 – Code of Good Practice: Dismissal, when an employer wishes to discipline a shop steward or an office bearer of a trade union, the employer is obliged to first inform and consult with the trade union. Failure to do so may result in the procedure being found to be unfair.
This does not however, mean that a shop steward has the right to be represented by a trade union official in an enquiry. This will depend on what is contained in the collective agreement between the employer and the shop steward’s trade union. In many cases however, regardless of the agreement, it may be prudent to allow a trade union official to represent a shop steward at the enquiry.
What about representation by someone who is not an employee of the company, for example, a lawyer or labour consultant? This question was considered in a much publicised decision of the Supreme Court of Appeal in MEC: Department Finance, Economic Affairs & Tourism, Northern Province v Mahumani (2004) 13 SCA 1.8.1
This matter pertained to a State entity and the same provisions may not automatically apply in the private sector. However it is worth noting the principles on outside representation that flowed from this judgement.
The Court held that despite a disciplinary code stating that outside legal representation is not allowed at an enquiry, a Chairperson faced with such decision should use his or her discretion to determine whether, in certain cases, outside representation should be allowed.
A Chairperson therefore needs to consider the following factors before making a decision:-
- The nature of the charges brought.
- The degree of factual or legal complexity pertaining to the charges.
- The potential seriousness of the consequences of an adverse finding.
- The nature of prejudice to the employer should legal representation be allowed.
- The comparative abilities of the parties to deal with the issues at the enquiry.
An example may be where a senior employee faces disciplinary action and has no-one to consult with or adequately represent him, except an outsider. In a nutshell, an employer or Chairperson should not automatically disallow outside representation without first considering the above factors.
Enquire now about an Initiating Disciplinary Enquiries course at Bruniquel and Associates