When an employee faces disciplinary action, they sometimes do not wish to face it alone and then turn to colleagues, unions or even outside lawyers and/or advocates to represent them in the disciplinary action. The question is, are they all allowed to represent the employee automatically?
Employees facing disciplinary action always have an automatic right to have a co-employee represent them. For this reason, unions usually attempt to have shop stewards/union representatives elected in the workplace. These shop stewards/union representatives are sometimes trained by the Union in the planning and defending of their members in these disciplinary hearings and or incapacity enquiries.
A union official, however, does not have an automatic right to represent an employee unless there is a formal agreement between the parties allowing representation by union officials. A union official, however, has an automatic right to represent their elected shop steward should the shop steward request representation by the union official.
Does this mean that union officials are not allowed to represent their members who are not shop stewards?
The law does not make specific reference to union officials and legal representatives as representing parties in internal disciplinary matters. Therefore, Chairpersons usually use the CCMA Rules as a guide to determine if they should allow the union official or legal representative to represent an employee in an internal disciplinary hearing.
Section 25(1)(c) of the CCMA Rules allow outside counsel in the following circumstances:
- The commissioner and all the other parties consent;
commissioner concludes that it is unreasonable to expect a party to deal with
the dispute without legal representation after considering –
- The nature of the questions of law raised (this entails whether the dismissal was possibly procedurally and substantively unfair);
- The complexity of the matter (this would depend on the reason for the dismissal and whether it can be related to misconduct. If there are numerous expert witnesses, documentary evidence, etc);
- The public interest: (this will depend on the application and if the request is based and in line with the employee’s Constitutional Rights);
- The comparative ability of the applicant and the respondent (will the employee be able to follow the proceedings and give a proper defence).
Therefore, we advise allowing a union official or legal representative to make a formal application prior to the hearing beginning before allowing them to represent automatically. This can be done in writing before the hearing or even on the day of the hearing in person.
As the employer, you then need to allow or oppose this application. If the application is opposed, you need to give valid reasons for opposing the application.
The chairperson will then have to make a finding on the application if the union official or representative is allowed to represent.
Representation by outside parties like union officials, lawyers and advocates can get extremely complicated. Want to know more about representation of outside persons? Contact your nearest SEESA Labour Legal Advisor. Alternatively, leave your contact details on our website, and a SEESA representative will contact you.
About The Author:
Gysbert Janssen started his career at SEESA in 2017. He is currently a Labour Legal Advisor at the SEESA Cape Town branch. He is a High Court Admitted Attorney.
RULES FOR THE CONDUCT OF PROCEEDINGS BEFORE THE COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION.