From time to time, employees apply to be legally represented in disciplinary hearings. The standard approach adopted by employers, and indeed indirectly supported by the provisions of the Labour Relations Act, is that employees are only entitled to be represented by a fellow consenting colleague, or on occasion, by a shop steward.
In the Labour Court case of Volschenk & another v Morero & others (J2247/10) this issue was addressed with specific reference to the applicant’s urgent application wherein an interdict was sought to suspend the applicant’s disciplinary hearing pending a review of a ruling by the chairperson denying him the right to be legally represented at the disciplinary hearing.
In short, the applicants wished to be legally represented at his disciplinary hearing, and the chairperson ruled that he was not entitled to legal representation.
The Court confirmed that employers are duty bound to hear applications for legal representation at disciplinary hearings, regardless of content of the employer’s disciplinary procedure which may in fact prohibit employees being legally represented in hearings.
The Court continued that “The essential requirement by which the need to permit legal representation is evaluated is whether fairness necessitates it”.
The applicant’s submissions were quite simple. It was argued that the chairperson ought to have exercised his discretion to permit legal representation in this instance due to the fact that the respondent had appointed a legal professional to act as complainant in the hearing, and there would therefore be disparity in the relative competence of the complainant and the applicants who were not legally trained.
In addition, it was added that the allegations involved issues of a complex nature which justify legal representation, and that criminal charges initially initiated against the applicants and subsequently withdrawn, could be reinstituted.
In this case, the Court held that the applicant was not entitled to legal representation even though the respondent was using an admitted attorney, within its employ, to represent the respondent.
This was due to the fact that the Court was of the view that the applicants would not “suffer irreparable harm in the conduct of their case if they cannot be represented by a legal representative as opposed to a trade union official”, as had been provided for in the respondent’s disciplinary procedure.
What’s more, the Court concluded that the even though the charges related to alleged fraud, “such charges against employees are common-place and in my view is also not an issue necessitating legal expertise to address it”. The Court also held that the case was not so complex that the applicants would be incapable of competently addressing the factual allegations, in regard alleged fraud, given that “the applicants have been employed for several years in the billing department of the respondent”.
Finally, the held that the potential of criminal charges could be dealt with by the applicants by them declining to make incriminating statements at the disciplinary hearing.
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