Legal Representation in Internal Disciplinary Proceedings

Introduction

Is the employee, being subjected to disciplinary proceedings, entitled to legal representation? This is indeed a vexed question within employee relations context. To make it more daunting, the considered answer to this question is “yes and no”, depending on the specific context. When researching this topic, it became evident that the CCMA, Labour Court (LC) and even the supreme Court of Appeal (SCA) grappled with this question over many years, however there seems to have crystallised some legal certainty in this regard, which I will endeavour to share with you in this article.

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 judge argued that allowing legal representation in such circumstances would depend on whether there is a disciplinary policy or collective agreement governing the nature and extent of representation in internal disciplinary proceedings. 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 protection to employees in this regard. This view was echoed in the Labour Court case: SA Municipal Workers Union on behalf of Members v Kopanong Local Municipality (2013) where it was held that a right to legal representation in disciplinary proceedings can also not be based on Section 23(1) of the Constitution conferring the right that everyone has to fair labour practices. The court went further in stating that direct reliance on the fundamental rights contained in the Constitution is impermissible where the right to fair labour practices is regulated by legislation and in this case, more specifically, by the LRA. 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): Section 185 of the LRA states that every employee has the right not to be unfairly dismissed and/or subjected to an unfair labour practice. Regarding representation in disciplinary proceedings, per se, the LRA makes no specific pronouncement or contains any such provision. 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 made of legal representation. While this code contains guidelines for fair procedure, the CCMA and labour courts have consistently expected employers to take heed of the provisions contained in Schedule 8 and other Codes of Good Practice annexed to the LRA in order to ensure that they act fairly. Collective Agreements A collective agreement is defined in the LRA as a written agreement concerning terms and conditions of employment or any matter of mutual interest concluded by: one or more registered trade unions, on the one hand, and on the other hand:

• one or more employees,
• one or more registered employer’s organisations or
• one or more employers and one or more registered employer’s organisations.

Collective agreements are sometimes regarded as delegated legislation pertaining to the parties bound by it. In some instances, the collective agreement regulates and governs, amongst others, the internal disciplinary process within the workplace. Such self-regulation by way of collective agreements, is also promoted by the LRA, which state, in Section 1 (Purpose of this Act), amongst others, the purpose of the Act being to provide a framework within which employees and their trade unions (on the hand) and employers and their employers’ organisations (on the one hand) can formulate industrial policy. In National Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and Another (2002) CC, Adv Martin Brassey SC was quoted stating that the general intention behind the LRA is that voluntarism (collectively pursued) should prevail over state regulation. Hereiterated that the rights conferred by the LRA are generally residual and are normally subordinate to arrangements that the parties collectively craft for themselves, thus the statutory provisions operate only in the absence of such collective agreement. Up to now, there seems to be a consistent view expressed by both the CCMA and 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. That addresses the “no”-part of the answer to the question whether there is an entitlement to legal representation in internal disciplinary proceedings. In order to explore the eventuality of the “yes”-part regarding the answer to the question whether there is an entitlement to legal representation in internal disciplinary proceedings, we need to take cognisance of what another source of law, namely case law, has pronounced regarding this matter. Case law indications regarding an entitlement to legal representation in disciplinary proceedings There are several court cases where the topic of legal representation in disciplinary proceedings featured. It is not my intention to discuss the relevant pronouncements in all these cases, but I will focus on a few prominent ones. – MEC: Department of Finance, Economic Affairs and Tourism, Northern Province v Mahumani SCA (2005) In this case legal representation in internal disciplinary proceedings was explicitly excluded by the employer’s disciplinary code and procedures, which were part of a collective agreement concluded at bargaining council level. Based on this exclusion, the presiding officer in the disciplinary proceedings refused the employee’s request for legal representation. The employee took the matter on review to the High Court where the presiding officer’s ruling regarding legal representation was set aside, holding that the employee was entitled to legal representation as requested. It was argued before the SCA by the employer that since the disciplinary policy in clear terms excludes outside legal representation in respect of both the employer and employee party, there was no room for an interpretation that the presiding officer is vested with a discretion to allow legal representation. The SCA however took note of what was articulated in the case: Hamata and Another v Chairperson, Peninsula Technicon Internal Disciplinary Committee, and Others (2002) SCA regarding the notion that a presiding officer, based on the premise that procedural fairness is a fundamental requirement in disciplinary matters, should have the power to exercise a discretion to allow legal representation in appropriate circumstances (despite what is stipulated in policy). That is, unless the presiding officer has plainly and unambiguously been deprived of such discretion. In the Mahumani case, the disciplinary policy, dealing with the procedural aspects, was however given the status of a guideline, which implies that its provisions can be deviated from in order to comply with the requirement of procedural fairness in a specific case. The discretionary authority to allow legal representation is also confirmed by the provisions of the Promotion of Administrative Justice Act 3 of 2000, which states that administrative action, which materially and adversely affects the rights or legitimate expectations of any person, must be procedurally fair and in order to give effect to this requirement, an administrator may, within his/her discretion, give the person concerned access to legal representation in serious and complex cases. The SCA, having concluded that a residual discretion to allow legal representation in internal disciplinary proceedings, generally exist, therefore referred the matter back to the presiding officer of the disciplinary hearing to properly exercise his discretion regarding whether it would be expedient in the circumstances to allow legal representation. – Isabel Strydom v CCMA, B du Plessis, Absa Bank (2004) LC This is an application to review and set aside the Commissioner’s ruling refusing a right to legal representation at the arbitration proceedings in the CCMA. Since complexity is a specific criterion to consider when exercising the discretion to allow legal representation in disciplinary proceedings and the court found that, given what was placed before the court, that the matter appeared not to be complex. As regards the comparative ability of the parties to deal with the dispute, the court was of the opinion that allowing legal representation will 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. Reference was made to the full range of criteria contained in Rule 25(1)(c) of the CCMA Rules to be applied in the exercise of the mentioned discretion, namely:

• 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.

– Senzo Justice Zondo and another v Uthukela District Municipality and another (2014) LC This is a particularly well-reasoned judgement, putting within context the circumstances within which it would be prudent to allow or disallow legal representation in internal disciplinary proceedings. In this case the conduct of discipline at the employer is regulated by a collective agreement entered into at bargaining council level. All aspects of disciplinary proceedings, including how disciplinary hearings are constituted and conducted, also confirming the rights and obligations of parties, were incorporated in the collective agreement. Regarding representation during disciplinary proceedings, the collective agreement specifically and repeatedly state that an employee is entitled to be represented at any disciplinary enquiry by a fellow employee, shop steward or a trade union official. Obviously, within context of the collective agreement, the reference to trade union functionaries pertains to the recognised trade unions, which are parties to the agreement. No mention or provision is made regarding external legal representation. In this case it dealt with an interdict to stay the disciplinary proceedings pending a ruling on legal representation, brought on an urgent basis more than two weeks after legal representation was initially refused. Upon his refusal, the presiding officer postponed the disciplinary proceedings to allow the employees the opportunity to arrange alternative representation. For some reason, the employees never made use of representation by their trade union, which they were entitled to. Their argument was that, while they are aware that the collective agreement does not allow legal representation, their entitlement to fair procedure entitles them to legal representation. It was further argued by the employees that the presiding officer failed to properly exercise his discretion to allow legal representation in the circumstances as he was (according to the employees) obliged to do. 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. In the Muhamani case the fact that the disciplinary policy was a mere guideline, allowed for the exercise of this discretion, as the presiding officer was not plainly and unequivocally deprived of this discretion. In comparison, it was held that the case before this court differs significantly from the Muhamani case in that in the Zondo case the presiding officer was indeed plainly and unequivocally deprived of the said discretion. In fact, the disciplinary policy, as part of the collective agreement, was intentionally amended by the parties to dispose with the provision “…any suitably qualified person” which was added to “fellow employee, shop steward or union official” as possible representatives and which addition could have implicated legal representation. The court concluded onthe issue of discretion that the policy 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. In conclusion – Let us endeavour to make practical sense of the vexed question regarding legal representation in internal disciplinary proceedings

• 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, notably, also assessing 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, 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 of a collective agreement unequivocally excludes legal representation in disciplinary proceedings, such provision will prevail.

Against this background, I suggest you have another look at what your disciplinary policy provides in as far as representation in disciplinary proceedings is concerned and ensure that there is no ambiguity as to who is allowed to represent employees in internal disciplinary proceedings. Assistance in this regard is available by simply contacting the JJK ER/IR Consultancy at jjk.erir@mweb.co.za. Author: J J (Koos) van der Merwe – Chartered HR Professional, registered with the SABPP