Irrespective of the fact that there is no absolute right for an employee to be legally represented during his or her disciplinary enquiry, our firm can assist and guide the employee through the different phases of the disciplinary process.
→ PRIOR TO THE COMMENCEMENT OF THE ENQUIRY:
- Assistance in understanding the charge(s);
- Interpreting the employers disciplinary code and policy;
- Advising the employee as to the employer’s compliance and/or or non-compliance with its own disciplinary code/policy and or Schedule 8 of the Code of Good Practice: Dismissal;
- Identifying any points in limine;
- Drafting and substantive application for legal representation in the absence of a contractual right and or agreement between the parties to be legally represented during the internal enquiry;
- Giving advice on the employer’s known evidence, relevant case law and related principles;
- Assisting with own witness and bundle preparation, cross-examination of the employer’s witnesses; identifying possible strategies to present the employee’s defence and general preparation for the enquiry, in absence of legal representation granted by the chairperson and/or an agreement between the parties to be legally represented.
→ DURING THE INTERNAL DISCIPLINARY ENQUIRY:
- Presenting legal and substantive arguments in favour of legal representation in the absence of any contractual right and/or agreement thereto between the parties;
- Full legal representation on the strength of an agreement between the parties thereto or successful ruling thereto by the disciplinary chairperson.
SCHEDULE 8 (CODE OF GOOD CONDUCT) OF THE LRA:
In terms of the Code an employee is entitled to representation only by a trade union representative or a fellow employee.
The vast weight of authority in the Labour Court has been against allowing legal representation at disciplinary enquiries.
However, both case law and the LRA appear to require, irrespective of the agreement between the parties, that an employer and or external chairperson at least apply its mind to an application from an employee to allow legal representation.
This was the position in Cuppan v Cape Display Supply Chain Services. The applicant in Cuppan applied to the High Court for an order granting leave to be represented by a legal practitioner at a disciplinary inquiry on the grounds that he was entitled to legal representation in terms of the (Interim) Constitution. In addition, the employers’ disciplinary code provided that inquiries had to be conducted in accordance with natural justice. Page J disposed of the argument for a constitutional right to legal representation at disciplinary enquiries and held that s 25(3) is clearly concerned only with persons who are accused of offences in a court of law and has no application to domestic disciplinary tribunals.
Page J, with regard to the disciplinary code provision that inquiries had be conducted in accordance with the principles of natural justice, refers to substantial authority to the effect that there is no general right to legal representation flowing from the requirements of natural justice although in complex cases natural justice may require legal representation. The judge is of the view that ‘where a hearing takes place before a tribunal other than a court of law, there is no general right to legal representation.’ The time may well come however when public policy demands the recognition of such a right.
In Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee and Others the Supreme Court of Appeal was of the view that a student disciplinary enquiry at the Peninsula Technicon amounts to administrative action. This, it was held, does not necessarily infer the right to legal representation, but that the disciplinary committee must at least apply its mind and exercise its discretion to the application for a legal representative.
Hamata, a student at the Peninsula Technicon argued for a right to legal representation at a disciplinary enquiry. He was refused legal representation on the basis that the representation rule in the code for disciplinary proceedings reads that ‘[t]he student may conduct his/her own defence or may be assisted by any student or a member of staff of the Technicon.’ Hamata appealed against the refusal to allow legal representation to the Cape High Court who upheld the refusal but granted the applicant a right of appeal to the Supreme Court of Appeal.
The judges of the Supreme Court of Appeal concurred that there was no constitutional right to legal representation in administrative proceedings, but that the Constitution was flexible enough to permit legal representation where it was required to attain procedural fairness, and that the disciplinary committee had failed to exercise its discretion in this regard. The appeal was upheld and the decisions of the disciplinary committee and the court a quo were set aside.
Legal representation at disciplinary enquiries came before the labour court in the more recent case of Majola v MEC, Department of Public Works, Northern Province and Others.
The employer sought to rely on the contract between the parties in order to exclude legal representation.
In this instance the contract took the form of a collective agreement, an instrument afforded primacy in the LRA. The court however was of the view that, notwithstanding the primacy of collective agreements, ‘if a collective agreement prohibits or restricts the granting of legal representation, an adjudicator may allow such representation provided just cause exists not to apply the terms of the collective agreement’. The adjudicator must be slow to disregard the terms of the collective agreement, but is required to balance the tension between the constitutional right of access to a court or tribunal, the primacy of collective agreements and the freedom to contract. In Majola’s case the Labour Court found that the chairperson had exercised his discretion adequately and therefore the application was dismissed.
The question of legal representation at a disciplinary inquiry received attention in Schoon v MEC, Department of Finance, Economic Affairs and Tourism, Northern Province & Another  9 BLLR 963 (T). The applicant, a game reserve manager, was called to attend a disciplinary inquiry into charges of theft, corruption, bribery and malicious damage to property. The inquiry was convened before the second respondent, a retired magistrate and employee of the first respondent. The applicant applied to be legally represented but his requests were denied. The applicant thereon launched an application in the High Court for an interim interdict prohibiting the respondents from continuing with the inquiry pending a review of the decision of the second respondent to disallow legal representation. The order was granted.
On review of the second respondent’s decision, the court, per Patel J, noted that the second respondent refused legal representation by virtue of the provisions of a collective agreement, Resolution 2 of 1999, the Disciplinary Code and Procedure for the Public Service. Clause 7.3(e) of this resolution states that:
‘in a disciplinary hearing, neither the employer nor the employee may be represented by a legal practitioner, unless the employee is a legal practitioner’.
The second respondent believed that he had no discretion to allow legal representation. The second respondent argued that he never decided that the applicant was not entitled to be legally represented but that this decision was taken by the employer and the applicant’s trade union when they entered into the collective agreement containing clause 7.3(e). The second respondent said that he had merely implemented this decision.
The court was not convinced. With reference to Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee, and Others 2002 (5) SA 449 (SCA) and s 1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) the court held that the disciplinary inquiry to which the applicant was subject constituted ‘administrative action’ for the purposes of the PAJA. The court also considered the provisions of s 33 of the Constitution which states that ‘everyone has the right to administrative action that is lawful, reasonable and procedurally fair’ as also the provisions of s 3 of the PAJA which provide, inter alia, that in order to give effect to procedurally fair administrative action, an administrator may, in his discretion, give a person an opportunity to obtain assistance and, ‘in serious or complex cases, legal representation’.
On the facts, Patel J held that clause 7.3(e), compelling a disciplinary inquiry chairperson to deny legal representation irrespective of the circumstances of the case, constitutes a violation of the applicant’s constitutional right to lawful, reasonable and fair administrative action. The court held that ‘flexibility’ in this regard is now a constitutional imperative where an administrative entity is faced with making decisions that cannot fairly be made without allowing legal representation. The second respondent accordingly had a discretion to allow legal representation and he was obliged to exercise this discretion fairly.
To determine whether a case is ‘serious and complex’ for purposes of s 3 of the PAJA the court held that factors such as the nature of the charges, the degree of factual or legal complexity, the availability of persons who may represent the applicant and the fact that the chairperson is legally trained should be considered. Considering these factors, the court held that the second respondent failed to exercise his discretion fairly. His decision to disallow legal representation was set aside and the court confirmed that the applicant was entitled to legal representation.
Written and compiled by Jaques Bloem, with the assistance of LEXISNEXIS,
LABOUR LAW THROUGH THE CASES – 03 March 2018