Legal representation in internal disciplinary proceedings
Whether an employee is entitled to legal representation during internal disciplinary proceedings unfortunately has no definitive clear-cut answer. The dominant viewpoint in this regard is that, as a rule, legal representation is not allowed in internal disciplinary proceedings but there is room for the accommodation of an exception to this rule.
This approach stems inter alia from the viewpoint expressed in Section 138(1) of the Labour Relations Act (LRA) directing commissioners at arbitration proceedings to conduct the arbitration in such a way that it involves a minimum of legal formalities.
Bearing in mind that, by and large, the participants in internal disciplinary proceedings will usually not be legally trained individuals, it stands to reason that by allowing legal representation in these circumstances could potentially create an imbalance among participants. This is apart from unnecessarily elevating the proceedings to the level of a lawsuit which could play out before a presiding officer, which may not be legally trained.
Even at the stage of arbitration under the auspices of the CCMA or a Bargaining Council, legal representation is not permitted in disputes concerning conduct or capacity, unless, as a general rule, the commissioner and all the other parties, consent to it.
As my intention is to supply a more unambiguous and workable directive in so far as legal representation in internal disciplinary proceedings is concerned, it will not be helpful to the reader to only take notice of the general rule in this regard prohibiting legal representation.
There is a reason why, in the interest of fairness, commissioners, and by extension, presiding officers in internal disciplinary proceedings, are required to exercise a level of discretion when confronted with a request to allow legal representation. I will elaborate upon this discretion later on in this blog.
What guidance do we find in this regard in the different sources of law?
- Common law:
Whereas the common law requires disciplinary proceedings to be procedurally fair, such fairness requirement confers no absolute right to legal representation in internal disciplinary proceedings or in other similar administrative proceedings, other than courts of law.
- The Constitution of South Africa:
There are two specific provisions in the Constitution which could be argued to have some relevance regarding the question of representation in disciplinary proceedings, albeit by some stretch of the imagination:
Section 33(1) headed: “Just administrative action” which reads: “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair”.
Section 34 headed: “Access to courts” which reads: “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum” (my emphasis).
In the Labour Court case: Police and Prisons Civil Rights Union v Minister of Correctional Services and Others (2006) the judge stated that the argument that to refuse legal representation in disciplinary enquiries constitute a violation of the constitutional right to a fair trial does not hold any merit.
The supremacy of collective agreements, be it contained in an agreed disciplinary policy or in a collective agreement concluded with a recognised employee representative body, however could (so the judge in this case argued) provide a legal basis for allowing legal representation in internal disciplinary proceedings, where such representation is provided for.
In SA Maritime Safety Authority v McKenzie (2010) the SCA held that no general constitutional right to fairness, encompassing the right to legal representation in disciplinary proceedings, can be implied to exist. The Labour Relations Act (LRA) already provides all the necessary protection to employees in this regard. It is however noteworthy that the SCA, in 2005 already, in the case: MEC: Department of Finance, Economic Affairs and Tourism, Northern Province v Mahumani SCA (2005) referred a matter where the presiding officer in the internal disciplinary proceedings refused to allow legal representation back to the presiding officer to consider (using his residual discretion) allowing legal representation in the case at hand, despite the fact that the disciplinary policy explicitly prohibits legal representation.
From the above it is clear that there appears to be no constitutional right to legal representation in disciplinary proceedings.
- The Labour Relations Act (LRA):
While it is stated in Section 185 of the LRA that every employee has the right not to be unfairly dismissed and/or to be subjected to an unfair labour practice, the LRA contains no provision relating to representation in disciplinary proceedings, per se.
One does however find some directive in this regard in the Code of Good Practice: Dismissal (Schedule 8) annexed to the LRA. In paragraph 4(1) of this code, it is stated: “The employee should be entitled (…) to the assistance of a trade union representative or fellow employee”. No mention is however made of legal representation.
- Collective Agreements
I have already mentioned that the supremacy of collective agreements could create a right to legal representation in internal disciplinary proceedings. Similarly, an agreed disciplinary policy may create such a right.
There seems to be a consistent view expressed by both the CCMA and relevant courts of law which dealt with the matter of legal representation in disciplinary hearings, that there is no clear and absolute right to legal representation in internal disciplinary proceedings.
Having said that, it however became clear that there is also no absolute prohibition of allowing legal representation in internal disciplinary proceedings. This viewpoint emanated from relevant case law and is based on the perception that presiding officers (and commissioners alike) do have a residual discretion in this regard to exercise in the interest of fairness, on a case-by-case basis.
The exercise of residual discretion
Before dealing with what relevant case law (as a source of our labour law) dictate as far as legal representation in internal disciplinary proceedings is concerned, let us consider some practical situations which could require the presiding officer to at least apply his/her mind to whether legal representation may have to be considered in the interest of fairness.
You may have on the one hand, an unsophisticated, relatively uneducated individual being disciplined, while the management representative bringing and arguing the case against the employee, my be a legally trained employee, such as someone from the legal department.
On the other hand, the employee may be represented by a trade union representative who is legally trained, while the management representative may be a lay person in the capacity of first line supervisor.
Both these examples suggest a level of imbalance in representation, which, on face value, could require discretion to be exercised. In the exercise of this discretion, there are however other factors to consider besides the mere sophistication and legal astuteness of the opposing parties.
In this regard we turn to what is stated as criteria in Rule 25 of the CCMA Rules. While these directives are applicable to representation before the CCMA, it is equally applicable, at least as a yardstick to be applied by presiding officers when exercising their discretion.
Rule 25(1)(c)(2) provides that the following factors need to be given due consideration:
- The nature of the questions of law raised by the dispute.
- The complexity of the dispute.
- The public interest; and
- The comparative ability of the opposing parties or their representatives to deal with the dispute.
If the majority of these considerations determine, in the mind of the presiding officer, that it would be legally expedient to allow legal representation in the internal disciplinary proceedings, it would be appropriate to do so.
Important – It must however be stressed very clearly that the exercise of this discretion is case-specific and does not create any future entitlement to legal representation. The granting of legal representation remains in the sole and exclusive discretion of the employer, represented by the presiding officer.
Case law indications regarding an entitlement to legal representation in disciplinary proceedings
I already referred above to some case law dealing with the issue of legal representation and while there are several such pieces of case law availabe, the brevity with which I am allowed for this blog, prevents me from dealing with it all – I will therefore only focus briefly on a few prominent ones.
- MEC: Department of Finance, Economic Affairs and Tourism, Northern Province v Mahumani SCA (2005)
Basically, highlighting the need to exercise the residual discretion on a case-by-case basis.
- Isabel Strydom v CCMA, B du Plessis, Absa Bank (2004) LC
In this case legal representation was refused at the arbitration proceedings, which ruling was taken on review to the Labour Court (LC).
In its consideration of the need for legal representation (albeit at the level of arbitration) the court duly applied the criteria in Rule 25 of the CCMA Rules and found that the matter was not legally complex and having regard to the comparative ability of the parties to deal with the dispute, the court found that allowing legal representation will unduly upset the balance in abilities, hence the failure by the employer to allow legal representation in the circumstances, was found not to have been unfair.
- Senzo Justice Zondo and another v Uthukela District Municipality and another (2014) LC
In this case disciplinary proceedings were regulated by a collective agreement entered into at bargaining council level. Regarding representation during disciplinary proceedings, the collective agreement specifically and repeatedly state that an employee is only entitled to be represented at any disciplinary enquiry by a fellow employee, shop steward or a trade union official. No mention or provision is however made regarding external legal representation.
Based on the fact that (as mentioned above) a collective agreement having primacy over the statutory provisions at play here, the court held that the employees concerned were bound by the provisions of the collective agreement, which unequivocally made no provision for legal representation.
Having established that there is no clear and absolute right to legal representation in internal disciplinary proceedings, the court had to apply its mind to the notion that fair procedure still requires a presiding officer to exercise discretion on a case-by-case basis, unless the presiding officer has plainly and unequivocally been deprived of such discretion.
The court concluded on the issue of discretion that the collective agreement concerned clearly left no room for such discretion to exist and hence the employees have no entitlement to legal representation as applied for in the case before the court.
- There is no absolute right (constitutionally or otherwise) to external legal representation in internal disciplinary proceedings.
- Such legal representation is however not totally ruled out but would depend on the circumstances of each case and the exercise of a discretion in accordance with the criteria contained in Rule 25(1)(c) of the CCMA Rules. In addition, it should also be assessed whether the presiding officer has unequivocally been deprived of such discretion and preferably by mutual consent between employer and employee.
- Where the provisions of the disciplinary policy carry the status of guidelines (as opposed to clear mandatory provisions contained in a collective agreement), implying that it may be deviated from on good cause shown, discretion to allow legal representation in disciplinary proceedings is implied.
- The LRA encourages self-regulation by way of collective agreements, the provisions of which agreements take precedence above the relevant statutory provisions. Where the provisions contained in a collective agreement unequivocally excludes legal representation in disciplinary proceedings, such a provision will prevail.