The Employee Wants a Lawyer at the Disciplinary Hearing
In most workplaces, the default is no. Legal representation is not provided for in the Code. The policy says union rep or fellow employee. End of discussion.
Item 4(1) of Schedule 8 of the Code of Good Practice: Dismissal is clear. An employee at a disciplinary hearing is entitled to the assistance of a trade union representative or a fellow employee. External legal representation is not mentioned. It is not an automatic entitlement.
What the Code’s silence actually creates is a discretion. The chairperson has the power to allow external legal representation. That discretion must be exercised when fairness requires it. It cannot simply be ignored or refused as a matter of course.
The Supreme Court of Appeal confirmed in MEC: Department of Finance, Economic Affairs and Tourism (Northern Province) v Mahumani (2004) 25 ILJ 2311 (SCA) that even where a collective agreement or disciplinary code appears to restrict legal representation, there may still be circumstances in which it would be unfair not to allow it. Where fairness demands legal representation in a particular case, the chairperson must exercise the discretion in favour of granting it.
Factors for Consideration
When an employee applies for legal representation, the chairperson cannot simply wave it away. A genuine assessment is required. In Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee 2002 (5) SA 449 (SCA), the Supreme Court of Appeals set out guidelines when consideration is given to legal representation during an internal matter:
- What is the potential sanction?
An employee facing the permanent loss of their livelihood is in a fundamentally different position from one facing a written warning. The more serious the potential outcome, the more difficult it becomes to justify denial. - How complex are the charges and the issues?
Charges involving financial irregularities, complex documentation, technical evidence or multiple witnesses raise matters that may warrant legal representation. Complexity is one of the strongest indicators that legal representation may be necessary. - Who is representing the employer?
If the employer has appointed a legally trained initiator or its own legal practitioner, refusing the employee the same right requires compelling justification. - Is the available lay representation actually adequate?
The actual skill and knowledge of the available representative, measured against the nature of the charges, is a live question. - What does the policy or collective agreement provide?
A policy restriction does not override the fairness obligation. - Are there any other relevant circumstances
The employee’s own level of education, their ability to articulate their case, the language of the proceedings and the overall configuration of the hearing are all in play.
When an application for legal representation is made, the chairperson should do two things above all others. First, take the application seriously and work through the relevant factors with genuine attention. Second, record the reasoning. A reasoned ruling that engages with the Hamata factors is defensible. A bare refusal is not.
A Legitimate Concern
It would be incomplete to discuss legal representation in disciplinary hearings without acknowledging the concern that experienced HR professionals raise. And in fairness to those raising it, the courts have acknowledged it too.
The issue is not with legal representation as such. It is with what happens when the disciplinary hearing stops being a workplace process and starts being conducted as though it were a criminal trial. The Labour Court observed in Tshongweni v Ekurhuleni Metropolitan Municipality (2010) 31 ILJ 3027 (LC) that a disciplinary enquiry in which both parties were legally represented had produced a 2 240-page transcript, consumed almost entirely by procedural and technical argument. The court was clear that this outcome entirely undermined what the LRA was designed to achieve. The statute envisaged a brief, fair pre-dismissal process. What had happened in that case was something else entirely.
A disciplinary hearing is not a court. It was not designed to accommodate the full apparatus of adversarial litigation. When it is conducted as though it were, the process suffers and so, ultimately, does the outcome. That is the concern HR practitioners carry into this debate and it is not without foundation.
Why the Answer Is a Better Chairperson, Not a Blanket Refusal
Where the charges are serious, the potential sanction is dismissal and the employer is itself legally represented, a blanket refusal will not survive scrutiny. The question then is not whether to allow legal representation but how to prevent the hearing from losing its character as a workplace process.
That is entirely within the chairperson’s control. And it is where most chairpersons fail, not because they lack authority, but because they do not exercise it.
A disciplinary hearing in which legal representatives appear is still a disciplinary hearing. It does not become a High Court trial simply because attorneys are present. The chairperson remains in charge of the proceedings, their scope, their pace and their conduct. The presence of legal representatives does not change that. What changes it is a chairperson who allows the legal representatives to define the process rather than the other way around.
At the outset of the hearing, the chairperson should make clear to all parties what kind of process this is and how it will be conducted. Preliminary points that belong in a court of law have no place here unless they relate directly to whether the hearing can proceed fairly. Applications must be brief. Cross-examination must be relevant to the charges. Objections to evidence are assessed in the spirit of a workplace enquiry, not the strict rules of a High Court trial.
The answer to the legitimate concern about legal representation in disciplinary hearings, in other words, is not always to keep lawyers out. Sometimes it is to run a tighter, more purposeful hearing and to do so from the first minute.
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