Archive for representation

Can I have my lawyer at a CCMA hearing?

Posted in Disciplinary hearings with tags , on September 7, 2009 by labourlawoffices

Legal representation for an employee during a disciplinary hearing or at the CCMA is often a point of contestation.  The general position in regard to the right of an employee to be legally represented at a disciplinary enquiry and / or during CCMA / Bargaining Council arbitration includes the following:

The general rule is that legal representation at a disciplinary enquiry is not allowed unless the employer’s disciplinary code and procedure or the employee’s terms of employment permit it.  Generally, an employee may only be represented by a fellow-employee or trade union representative, and not a legal representative.  However, our Courts have decided that in cases where complex issues are concerned, legal representation may be permitted.  If the matter is unusually complex involving complicated evidence and difficult issues of law, the refusal of legal representation could result in the disciplinary proceedings been regarded as unfair.  However, if the matter is fairly straight forward, the evidence to be led clear, and no complex legal questions arise, the refusal of legal representation would in all likelihood be considered to have been fair.

The criteria for allowing legal representation is whether or not the failure to do so may render the disciplinary proceedings procedurally unfair, and this would in turn, involve a consideration of the nature and complexity of the disciplinary charges, the degree of factual or legal complexity, the availability of a co-employee representing the employee, and the legal capabilities of the complainant, the employee and the disciplinary chairperson.

When an employee requests to be legally represented at a disciplinary enquiry, and the company’s disciplinary code and procedure does not permit such representation, the employee should be informed that the company’s disciplinary code and procedure does not permit legal representation at disciplinary enquiries.  The employee may then be allowed to prepare an argument for the disciplinary enquiry chairperson to consider on why legal representation should be allowed, despite the provisions of the company’s disciplinary code and procedure.

The employee may rely on a legal representative at a disciplinary enquiry for this purpose.  The company would also be given an opportunity to be so represented during this aspect of the hearing.  At the disciplinary enquiry the chairperson will hear the legal representative only on the issue of why legal representation should be allowed.  The employer representative or legal representative for the company will also be granted an opportunity to argue the matter.

The chairperson of the disciplinary enquiry will then apply his / her mind to the question whether fairness in the circumstances requires that legal representation be permitted. In considering the request, the disciplinary enquiry chairperson will consider all the circumstances of a case in order to determine whether the refusal would render the proceedings procedurally unfair.  The chairperson will not be allowed to rely simply on the fact that the company’s disciplinary code and procedure does not allow for legal representation in coming to a conclusion.  By refusing an employee the right to legal representation irrespective of the circumstances of his / her case is inconsistent with the constitutional right to fair labour practices and the common law.

Whereas no legal representation whatsoever is allowed at CCMA / Bargaining Council conciliation proceedings, a party’s entitlement to legal representation at arbitration proceedings is specifically regulated.  If a dispute concerns a dismissal involving misconduct, incapacity ill-health or incapacity / poor work performance, legal representation is only allowed if:

  • The commissioner and all the other parties agree, or
  • If the commissioner decides that it would be unreasonable for a party to proceed without such representation.

A legal representative may represent a party at all other arbitration hearings in respect of any other reason for dismissal.  Consultants, Advice Office officials, relatives and friends are, without exception, not allowed to represent a party at arbitration proceedings.  Once again, a legal representative should be permitted at arbitration to argue the merits of why in circumstances of that particular matter, a commissioner should exercise his discretion in allowing legal representation on behalf of a party.