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 :
HAMATA & ANOTHER VS. CHAIRPERSON PENINSULA TECHNICON INTERNAL DISCIPLINARY COMMITTEE AND OTHERS
MAJOLA VS MEC DEPARTMENT OF PUBLIC WORKS NORTHERN PROVINCE AND OTHERS
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.
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!!