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One of the requirements of a procedurally fair dismissal, as set out in Schedule 8 of the Labour Relations Act 66 of 1995 (the Code of Good Practice: Dismissal), is that an employee is entitled to the help of a trade union representative or fellow employee at his disciplinary inquiry.
Though this requirement seems straightforward, there has been a lot of debate on whether an employee is entitled to legal representation at a disciplinary inquiry or not.
Often an employer's disciplinary code allows for representation by a fellow employee or trade union representative, but fails to mention or excludes legal representation at a disciplinary inquiry.
In the matter of Hamata and Another v Chairperson, Peninsula Technikon Internal disciplinary Committee and Other 2002 (5) SA 449 (SCA), the supreme court of appeal held that there is no right to legal representation in forums other than courts of law.
But employers have a duty to ensure that employees have a procedurally fair disciplinary inquiry.
The chairman of a disciplinary inquiry is responsible for determining if legal representation is essential for the disciplinary inquiry to be considered procedurally fair.
This is unless the chairman has "plainly and unambiguously been deprived of any such discretion" by an employer's disciplinary code, which is challengeable by law.
The chairman should consider any requests for legal representation in light of the circumstances of each case and should take these factors into account:
l The nature of the charges brought against the employee;
l The degree of factual or legal complexity of the matter;
l The potential seriousness of the consequences of an adverse finding;
l The availability of suitably qualified lawyers among the staff body of the employer;
l The fact that there is a legally trained person presenting the employer's case; and
l Any other relevant factor.
The high court held in the matter of Schoon v MEC: Department of Finance, Economic Affairs and Tourism, Northern Province and Another  9 BLLR 963, that legal representation is an intrinsic component of natural justice, and fairness demands that that representation is allowed in complex and serious cases.
Despite this, the discretion exercised by the chairman of a disciplinary inquiry in which the right to legal representation is regulated or even prohibited by a collective agreement is more restricted than a situation where there is no collective agreement in place.
Where legal representation is regulated or even prohibited by a collective agreement, it is the chairman's task 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 and between collective and individual rights." (See Majola v MEC: Department of Public Works, Northern Province and Others  1 BLLR 54 (LC).)
l Lavery Modise is a director at Routledge Modise. He is assisted by Sian Wilkins, a candidate attorney at Routledge Modise