Port Elizabeth: MyPE - On the Job with Wouter Booysen: Representation at Disciplinary Hearings a Thorny

www.MyPE.co.za: A reader has contacted me about a problem involving her recent internal disciplinary hearing, at which she was refused union representation.

As a union member, she asked that a union representative accompany her in order to explain proceedings, since she has only a Grade 8 education and felt that her reading and social skills were therefore inadequate.

When the employee arrived at the hearing, her employer denied the request, citing several reasons. She requested a postponement in order to arrange another representative, but returned again with a union official.

The employer explained that union officials were not allowed to represent employees at in-house disciplinary hearings.

The employer referred her to the disciplinary hearing notice, which stated that she was only entitled to assistance from a representative, fellow employee or shop steward from her place of work. The poorly-educated employee had not understood this, nor shown her union the notice when she approached them for help.

Our reader and her representative walked out of the hearing, which continued. The outcome resulted in dismissal from her job.

She now feels that she has been " . . . denied my legal right to be represented by a union official of my choice".

The little information I have implies that the arbitrator in this case observed that the provisions regarding employee representation at disciplinary hearings in Schedule 8 of the Code of Good Practice Dismissal, did not include union officials and legal practitioners. The reason for this is that internal disciplinary proceedings must be handled with minimum legal formality.

In a similar case study, a union had no clear right to demand representation by officials for members at disciplinary hearings unless this was agreed upon by both parties. In addition, only a recognition agreement providing specifically for union representation or by someone not employed by the employer gives an employee the right to this.

The arbitrator noted that the employer's rules regarding representation at disciplinary hearings were clear and explicit – and that this information was conveyed adequately to the respondent employee at the time. He therefore ruled that on the basis of employee representation, the dismissal was procedurally fair.

I later discovered that our reader's application was viewed as frivolous and vexatious by her employer – and that she had submitted a referral to the Commission for Conciliation, Mediation and Arbitration (CCMA) in the full knowledge that outside representation was not permitted, and therefore in the full knowledge that she had no case. As a result, the applicant and the union were ordered to pay the costs of the CCMA, and the costs incurred by the employer.

From the above it is clear that employers are entitled to have rules regulating employee representation at disciplinary hearings and that employees do not have an automatic legal entitlement to be represented by a person other than an employee of the employer.

Therefore, an employee must submit a proper application to the employer should he or she seek representation by a person other than an employee of the employer – and state reasons why a company representative is deemed unsuitable.

The employer will consider the application, and make a decision. If the employee does not submit such a request to the employer prior to the disciplinary hearing, the employee has no right to simply arrive at the disciplinary hearing accompanied by a representative from outside the organisation.

Booysen & Rossouw Attorneys in Port Elizabeth specialises in the fields of labour relations and injuries on duty. The firm also deals with all other legal matters.

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