Disciplinary hearings and the employee’s right to legal representation

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The postponement of suspended Eskom executive Mathsela Koko’s disciplinary hearing highlights just how costly and drawn out disciplinary procedures can be when lawyers become involved in the process.

It also begs the question: Under what circumstances does the employee have the right to engage legal representation in respect of a disciplinary hearing?

The Labour Relations Act is low-key on the issue of legal representation during disciplinary hearings. Schedule 8 of the LRA, the Code of Good Practice for Dismissal deals with some of the key aspects of dismissals for reasons related to misconduct. 

More specifically, the Code states that the employer should notify the employee of the allegations, allow the employee a reasonable opportunity to prepare, to state his/her case in response to the allegations and that the employee should be entitled to the assistance of a trade union representative or fellow employee.

an employee may always bring an application for legal representation…

The Code serves as a guideline for employers to consider when establishing their own internal disciplinary codes and procedures. These codes can differ quite significantly from one organisation to the next, depending on their size and type of industry they operate in. Some organisations allow for legal representation, while others specifically prohibit same. 

Most employees are under the misconception that if their case gets to the disciplinary hearing phase and the company’s disciplinary code and procedures expressly prohibits legal representation, then employees cannot engage the services of a legal representative.

The reality, however, is that employees can never outright be denied legal representation. They must be afforded the opportunity to apply for legal representation, which will be for their own cost.

However, there is no guarantee that the chairperson of the hearing will allow legal


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Read this article by Advocate Tertius Wessels, Legal Manager at Strata-g Labour Solutions, as well as a host of other topical management articles written by professionals, consultants and academics in the December/January 2017/18 edition of BusinessBrief.


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