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

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

& 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.

to have
your labour
and other workplace related questions answered

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