Is legal representation in disciplinary hearings allowed?

Many employees who are charged with misconduct would prefer to have legal representation in disciplinary hearings in order to ensure that their rights are protected and to give them the best possible chance of being found not guilty or facing a harsh sanction.

As a general principle, an employee is entitled to the assistance of a trade union representative or fellow employee. There is no general right for an employee to be legally represented at a disciplinary enquiry.

That being said, a chairperson of a hearing has the discretion to allow legal representation. This discretion should be exercised in favour of allowing legal representation in those cases where it is truly required in order to attain procedural fairness.

The factors relevant to deciding whether or not to allow legal representation include the nature of the charges, the degree of factual or legal complexity of the charges, the potential seriousness of the consequences of an adverse finding, the ability of the person who is presenting the case against the employee and any other factor relevant to the issue of fairness.

In short, the following principles apply:

• The point of departure is that legal representation in disciplinary hearings is not automatically permitted
• It is inappropriate to adopt a rigid approach in terms of which legal representation is never permitted at disciplinary hearings irrespective of the prevailing circumstances
• The chairperson of a disciplinary hearing has a discretion to permit legal representation. This discretion should be exercised properly, having regard to the prevailing circumstances and the dictates of fairness
• Factors that are relevant to the exercise of this discretion, generally include the following:
  • The nature of the allegations
  • The degree of factual or legal complexity of the matter
  • The potential seriousness of the consequences of an adverse finding; and
  • The comparative ability of the opposing parties or their representatives to deal with the dispute.