Since 2008, a number of workers have sought to assert their right to legal representation in disciplinary proceedings, invoking either human rights or contractual clauses. CJCE Clarke took into account some of the criteria identified in previous case law of the Court of Justice and stressed that, although these criteria should not be defined separately, they are part of an overall assessment of the need for legal representation to make the procedure fair. The criteria are not disputed and include the seriousness of the charge; the possible sanction; whether legal problems are likely; the employee`s ability to present his or her own case; the need to make the decision quickly; procedural difficulties; and the need for fairness between the parties. The court considered that the fact that the charges could also constitute a criminal offence was « of marginal relevance, but… of limited weight ». The appeal of the Court of Appeal`s decision to the Supreme Court was allowed in February 2019. This was done on the basis that a matter of general public interest had been raised – the right of an employee to be legally represented in disciplinary proceedings. Hamata set the threshold to be used when assessing a request for legal representation. In particular, in the Hamata case, the Court held that legal representation should be granted « only in cases where it is genuinely necessary to obtain a fair trial ». Legal representation should therefore be allowed in cases where the proceedings may be considered procedurally unfair if they are not permitted. In other words, the demand for legal representation should be so deeply rooted in the procedural elements that guarantee a fair trial that the procedure without such a procedure is necessarily unfair. This view was confirmed in 2016 in Ming v.
MMI Group Ltd & Another. It is important to note that the Hamata Court ruled that any regulation requiring the complete rejection of requests for legal representation in all circumstances cannot be accepted. The Tribunal noted that, in exercising its discretion to authorize legal representation, the presiding judge should consider, among other things, the following factors: (i) the factual or legal complexity raised by the indictment, (ii) the potential seriousness of a possible finding against the accused employee and the prejudice that the accused employee could suffer as a result, that he is denied legal representation. Grogan (Dismissal Third Edition, 2017) also argues that other relevant considerations include the expertise of the person presenting the employer`s case, the availability of other representatives, the status of the employee, and the fact that witnesses testifying on behalf of the employer could intimidate lay representatives. The Supreme Court of Appeal followed Hamata in MEC: Department of Finance, Economic Affairs & Tourism, Northern Province v Mahumani (2005) 2 All SA 479 (SCA) and ultimately held that in cases where an accused employee asks to be represented by counsel, the presiding judge must seriously consider the claim. In R (at the request of G) v. Governors of School X and City Council Y, it was found that the employer had not violated the human rights of a teaching assistant by refusing to allow him to be accompanied by a lawyer at a disciplinary hearing. If an employee requests permission to be represented by counsel at a hearing, employers should consider the seriousness of the allegations and the consequences for the employee when making their decision. In MEC: Department of Finance, Economic Affairs and Tourism: Northern Province vs. Schoon Godwilly Mahumani, the Supreme Court of Appeal held that while the employer`s disciplinary policy prohibits the use of an external representative, this may be permissible in certain circumstances. The Court held that the employer`s policy must be regarded as a guideline that can be derogated from in appropriate circumstances.
Therefore, you ultimately leave it to the presidents to decide. Therefore, the employer`s failure to disclose the possibility of using an external representative through their policies or the announcement of a disciplinary hearing does not preclude employees from seeking the assistance of such a representative. However, in light of the above, it should be kept in mind that it is not illegal for an employer to have a policy prohibiting the support of external representatives. However, if the employee wishes to be represented by outside counsel, the application must be properly considered on the basis of the above factors, not a simple complete rejection of the application. In applying these principles to the case before counsel, Clarke J. characteristically stated that the allegations, probable evidence or procedure likely to be followed contained nothing that would place the disciplinary proceedings against the employee outside the jurisdiction of an experienced union leader. He reiterated that « an internal disciplinary proceeding such as this is not a criminal proceeding » and is not subject to the rules of evidence or procedures that might apply in a similar situation before a court. In a separate decision, Justice Charleton reiterated that criminal procedure laws do not apply universally to all investigations and that « the starting point and often the end is the contract of employment. » While these submissions were not addressed by the Court, it could be argued that they could be extended to an employee`s right to cross-examine witnesses in the context of workplace disputes. Last year, the Court of Appeal ruled that the circumstances in which an employer would be forced to exercise discretion in favour of admitting legal representation should be « exceptional. » See our previous warning.
Although this person was not a qualified lawyer, he had legal training and was a member of a medical advocacy organization. This case is an important reminder that where there is an explicit contractual clause relating to a disciplinary proceeding, there is likely to be an implied duty to ensure that the matter is dealt with fairly and in accordance with the principles of natural justice. Requests for legal representation should not be ignored and, on the contrary, organizations would be well advised to apply the seven factors applied in this case before reaching a conclusion on what is appropriate in the circumstances. The employer should also consider an explicit contractual right to legal representation at disciplinary hearings and, according to Stevens, the possibility of a breach of the implied trust clause between the employer and the employee. Applying the High Court`s guidelines in the ex p Tarrant case, the Court concluded that the student was entitled to legal representation, taking into account the following factors: Employers would be well advised to give due consideration to any request for legal representation by an employee, particularly in non-unionized employment. Not only may there be « extraordinary circumstances » justifying such representation, but in certain circumstances such representation may be in the interest of both parties and may facilitate the proceedings depending on the particular circumstances of the case.
