It seems that when it comes to disciplinary hearings, some employers are still too inclined to pay attention to the finer detail, and in the process they overlook the basics.
Other factors such as the employee's previous disciplinary record must be taken into account, as well as whether or not the employee was aware that he/she could be dismissed for the offense E.G. the disciplinary code if any.
It goes without saying - and every employer has a duty to make themselves aware of the procedures required prior to dismissal - that no employee can be dismissed unless the dismissal is preceded by a fair procedure as per schedule 8 of the LRA and the Code of Good Practice.
A fair procedure generally includes a number of rights that the employee is entitled to - including the right to be given notice of the charges in sufficient detail to enable him/her to prepare a defense, informing him/her of his right to representation and his right to call witnesses to testify on this behalf, and his right to cross-examine witnesses called by management etc.
Employers often find themselves having to pay out money in compensation at the CCMA because of procedural unfairness.
This is usually brought about by a failure on the part of the employer to follow fair procedure, or a failure by the employer to follow his own disciplinary procedure.Therefore the question - is it fair or unfair to allow or disallow external legal representation?
The answer is simple when you look at the case studies of :
In both cases the labour Appeal Court of South Africa ruled that it was unfair for the employees not to be represented in these cases. It is then expected from the Chairperson not to blindly look at internal policies and procedures but rather to look at the merits of the case. Also if the employee is well enough equipped with knowledge of the LRA and BCEA to represent him or herself fairly. Our further opinion is that the chair person should look at the ability of the complainant to defend this matter against a attorney and whether the complainant in a matter is able to.
In Group Five Civils Ltd case number NH11/2/8938 26TH May 1993, Industrial Court Pretoria, at the disciplinary hearing the employer refused to allow the employee's attorney to represent him.
The court ruled that the employee was entitled to such representation by a practitioner of his/her choice and was unlawfully and unfairly denied it.
In Madondo/ SA Breweries  8 BALR 875 (CCMA), the employee was dismissed for refusing to attend a goal setting meeting. The employee stated that he wished to be accompanied by a representative to this meeting and the employer informed him that the right to representation did not apply to such meetings.
Upon being informed of this, the employee was discourteous to his supervisor, and the arbitrator found that the employee was guilty of disobeying a reasonable and lawful instruction, and also of unacceptable behavior.
The employee was also on a final written warning for various incidents of misconduct, and his disciplinary record showed that he had been found guilty of other incidents of misconduct which indicated that this employment relationship was intolerable.
However at the disciplinary hearing, the chairman refused to allow the employee to have representation because the representative that he had chosen was not a shop steward.
The employee then found another representative, but when he asked the chairman to recuse himself, the chairman expelled both the employee and his representative for the disciplinary hearing.
The arbitrator found that this defect was so gross as to render the dismissal procedure to be unfair, and the employee was entitled to compensation.
He was awarded a compensation of 12 months salary.
Thus it can be seen that while caution should be exercised by employers to ensure that they do follow a fair procedure, it does not mean that they must stick to a procedure absolutely to the letter - minor deviations from procedure would probably be allowed and would not be found to be unfair. It must further be clearly understood by the employer that - to allow external representation may assist you later should the matter be referred to the CCMA and then you cannot be accused of being unfair i.t.o representation. On the other hand how do you deal with an application from an external representative and how or when do you decide that it is not permitted to have external representation?
The concern however is that if you decide to allow - are you now creating a precedent for others and if you don't are you creating a unfair situation? Please ensure that your presiding officer knows the law when he/she makes a decision!!