February 21, 2017

What is an employee’s right to representation at a disciplinary hearing?

James Bush

South African Labour Law is a fine example of legislation which protects two parties (in this case, the employer and the employee) equally. This ensures a harmonious and productive relationship in the workplace, where all parties know where they stand. This delicate balance becomes slightly complicated when Trade Unions, purporting to act in the interest of workers, get involved. An example of this is the potential involvement of trade unions in a disciplinary hearing.

Under South African labour law legislation, an employee has a fundamental right to be represented in a disciplinary hearing, should he or she want representation. However, the person who represents the employee cannot be a lawyer or a person who acts in his or her capacity as a legal professional. Once an employee has been notified of a disciplinary hearing, he or she must be allowed a reasonable period to prepare for said hearing. This right includes being allowed to consult with a trade union representative before the hearing.

An employee is also entitled to representation in the hearing itself, however, this representation is confined to ‘in-house’ people, i.e. a fellow employee or a “shop steward”, who is a person elected by the employees to represent them when dealing with management. A trade union representative would only be allowed in the hearing if an application is made to the employer. The employer must fairly consider this application and take into account certain factors, including the seriousness of the charge, any potential prejudice to the employee should a trade union representative not be allowed to represent him or her, and the seriousness of potential consequences for the employee as a result of the outcome of the hearing. Therefore, allowing a trade union representative in the hearing is at the complete discretion of the employer.

Allowing a representative could be advantageous in that it would dispel any possible claims of unfair procedure at the hearing. However, it could also lead to unnecessary delay and complications during the hearing as the representative will often be an ‘outside party’ and not understand the company dynamic or the work environment. Further, it could have a negative impact on future hearings should word spread that a trade union representative was allowed in the hearing as other workers may also want to be represented by the representative.

If you’re involved in a dispute at work, contact us to make sure you understand your legal rights.

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