Bradley Workman-Davies

A recent case in the labour court gives some guidance on how far an employee's right to legal representation at an internal disciplinary enquiry will extend.

As a general rule an employee is not entitled to legal representation at an internal disciplinary enquiry unless this right is contained in an applicable agreement or policy which binds the employer.

However, even the fact that a disciplinary code expressly states that no legal representation is allowed does not mean that the presiding officer has absolutely no discretion to allow legal representation, and must thus always refuse such representation.

Fairness dictates that the presiding officer should consider whether the circumstances of the case before him or her are such that a request for legal representation should be granted.

The factors that a presiding officer should take into consideration when exercising his or her discretion are:

l the nature of the charges;

l the degree of factual or legal complexity of the case;

l the comparative ability of the opposing parties to deal with the dispute;

l the potential seriousness of the consequences of an adverse finding; and

l the nature of the prejudice to the employer in permitting legal representation might be taken into account.

Accordingly, it would be prudent for employers to advise presiding officers of a disciplinary enquiry that, should an employee request legal representation, they retain a discretion to decide whether the circumstances of the case are such that fairness dictates that such representations should be allowed.

However, in the recent case of Dipaleseng Municipality v SA Local and Government Bargaining Council and Others, a 2008 decision of the labour court, the court found that if an employee is granted a right to legal representation, this does not mean that the employee can postpone or delay the holding of the enquiry by the mere fact that the employee cannot secure the representation of a particular legal representative.

In this case, the employee's election to not proceed with the enquiry, because a particular advocate became unavailable to her in the course of the enquiry, was said to be a gamble by the employee, which she took in the hope that the enquiry would be postponed.

The court decided that this gamble did not pay off, and the employee could not delay the proceedings just because her selected advocate was unavailable.

The employee could have found another advocate or attorney to represent her, or represented herself.

Her failure to do so, and the continuation of the enquiry by the employer in the absence of the employee, did not render the dismissal of the employee unfair.

The lesson to be learnt from this case is that, although an employee may in certain circumstances be entitled to legal representation, this right does not extend to representation by a particular representative whose unavailability may delay proceedings, and the employer's right to finalise an enquiry without unreasonable delays or postponements is just as important as an employee's right to be fairly treated during the enquiry.