NOTICE TO ATTEND A DISCIPLINARY HEARING: MISA (UNION) REPRESENTATION

Facing a Disciplinary Hearing and Representation

When you find yourself in the unfortunate position of having to attend a disciplinary hearing you need to have an experienced representative to represent you in the matter. The reason is simple: there might be a lot at stake should you be unsuccessful in representing yourself adequately and the finding, as a result, has a negative effect. Now the question, who can represent you?

• Union Official/Union Representative:

The Labour Relations Act 66 of 1995 (LRA) differentiates between a union official and a union representative.  According to the LRA, a union official is any person who is appointed by a trade union. For instance when someone from the MISA Legal Department represents you. A union representative could be any person who is a member of MISA (a trade union) and who has been nominated by you as union member to protect your interests in the workplace. Such a person is usually referred to as a shop steward. Take note that MISA operates differently in that we do not follow the ‘union representative’ (shop steward) route for a number of reasons, for instance we demand a specific standard of representation and skill our officials accordingly.

Importance of representation

The Code of Good Practice, schedule 8 in the LRA provides in item 4 that when there is an enquiry held in relation to an employee’s alleged misconduct the ‘employee should be allowed …the assistance of a trade union representative [shop steward] or fellow employee’.

The importance of representation is further highlighted in the CCMA Guidelines: Misconduct Arbitrations (2012). This guideline confirms that you are not automatically entitled to external representation (including a MISA Official) at disciplinary hearings, but there might however be exceptional circumstances where you might be entitled to external representation. For instance, when the disciplinary hearing is dealing with complex issues and complicated evidence and difficult issues of law, the refusal of external legal/union representation may result in the disciplinary proceedings being regarded as unfair.

On the flipside of the coin, if the matter is fairly simple with straightforward evidence and there are no difficult legal issues involved, the refusal of external legal or union representation might be considered to have been fair. In these instances we will still assist you telephonically and review the outcome with you.

Examples of where the importance of representation was confirmed:

The employer’s conduct at/or during disciplinary hearings came under the spotlight and raised questions regarding fairness when an employee’s request for external representation was refused.

In the reportable judgment, MEC: Department of Finance, Economic Affairs and Tourism: Northern Province vs Schoon Godwilly Mahumani 478/03 SCA (hereinafter referred to as the Mahumani case), the Supreme Court of Appeal confirmed the decision of the chairperson in the disciplinary hearing who had refused the employee legal representation. The court held that the employee, in terms of the internal disciplinary code, which was confirmed to be a guideline only, could apply for legal representation. The circumstances of this specific disciplinary hearing allowed the chairperson to deviate from the disciplinary code. The chairperson could therefore not be faulted to refuse legal representation based on the circumstances of the disciplinary hearing.

In terms of the Mahumani case, the court held that a chairperson must deliberate on the following prior making a decision on whether legal representation should be allowed or not:

• The type or nature of the charges;
• Level of difficulty in terms of the factual and legal issues to be decided during the disciplinary hearing;
• What will the consequences as well as the seriousness of the envisaged consequences be in a negative finding;
• Prejudice to the employer when legal representation is permitted; and
• Prejudice to the employee when legal representation is refused.

Legal representation is not a default right!

In Molope v Mbha 2005, 3 BLLR 267 (LC) (hereinafter referred to as the Molope case) the court found in favour of an employee whose application for postponement, as a result of his representative withdrawing moments prior the hearing, was refused. The court established that the dismissal of the employee was procedurally unfair and confirmed that ‘it is now established that one of the requirements of a procedurally fair hearing embraces the entitlement of an employee to be represented there at by a co-employee or a trade union official or a lawyer.’

Again, the complexity of the issue as well as the consequences of a negative outcome, such as in the Molope case should be considered prior refusing you the right to be represented by an external person such as a MISA Official.

The Constitutional Court as far back as 2007 recognized this important aspect in SA National Defense Union v Minister of Defense and Others 2007 ILJ 1909 (CC). The court stated that the right to union representation in grievance and disciplinary proceedings forms part of the right to fair labour practices as enshrined by Section 23 of the Constitution.

What if your employer is represented by an attorney and your request for outside representation is denied? In Blaauw v Oranje Soutwerke (Pty) Ltd [1998] 3 BALR 254 (CCMA) an employer was represented at a disciplinary hearing by an outside attorney. The employee was however not afforded the opportunity to bring an attorney or outside representation to represent him. The arbitrator confirmed that the employee should have been allowed outside representation for the following two reasons:

• There was nobody suitable amongst the employee’s colleagues to represent the employee;
• The employer was represented by an attorney who prosecuted the case for the employer.

Due to the employer’s failure to allow such representation the arbitrator found the employee’s dismissal to be procedurally unfair and awarded the employee seven months’ remuneration in compensation.

MISA Official Representation

MISA will in every application received from you, subject to our By-Laws and Constitution, apply to your employer to represent you. Once we are allowed to represent you, we will in a very professional manner engage in dialogue with your employer on your behalf during the disciplinary hearing.

Conclusion

The test of whether or not to allow external legal or union representation is whether or not the failure to do so would make the disciplinary proceedings procedurally unfair. This would involve consideration of the nature and complexity of the disciplinary charges, the degree of factual or legal difficulty, the availability of a co-employee or union official representing the employee, and the legal capabilities of the initiator, the employee and the chairperson at the disciplinary.

You do not have the automatic right to legal representation or union official representation. We (MISA) will on your behalf apply to your employer to represent you. In our request, should it be required, we will address the employer on your behalf on the complexity or difficulty of the charges laid against you as well as your ability in the circumstances to place all relevant factors to the chairperson.

Bear in mind that even though a disciplinary hearing is an internal process, limiting your options in terms of default representation, the outcome of such a hearing should be heard by an external tribunal. Here, MISA has the right to represent! 

MISA – Just a phone call or an e-mail away!

(Article by Anneke Venter/Edited by Tiekie Mocke)

Kindly utilise the following e-mail addresses and links for assistance: 

Legal/Labour-related enquiries                      Legal@ms.org.za  

Legal Reception                                                011 476 3920 / 071 880 9682    

MISA Benefit claim-related enquiries            Claims@misa.org.za   

Any other enquiries                                          Info@ms.org.za  

Website                                                              www.misa.org.za    

Mobile App                                                        https://onelink.to/w9a7ku