The Right To Presentation

An alleged offender has the right to be either represented/assisted. The alleged accused may be assisted by a fellow employee or union representative (shop steward).

An alleged offender has the right to a representative of his/her choice, provided that the representative is a fellow employee or shop steward (union representative). The representative should be able and skilled to ensure fairness to the alleged offender.

The duties of the representative could be described as follows:

• Conducts proper preparations with the accused.
• Obtain necessary information.
• Ensures all relevant company policies and procedures are studied and the accused advised accordingly.
• Participates to ensure that fairness and reasonableness are complied with.
• Makes statements on behalf of the employee, if required.
• Assists the employee by asking questions and cross examine of witnesses called by the initiator.
• Has the necessary knowledge, skills, and experience to do the above, taking into account the severity of the allegations and the nature of the transgression.
• Presents the case of the accused effectively.
• Gives the employee moral support.
• Advises the employee on the validity and fairness of the procedure.
• Conducts her/him in a manner that ensures the procedure takes place in a structured and orderly manner.
• Ensures that witnesses for defence attend the hearing and prepare documentation, when applicable.

Comments Regarding External Representation

Legal representation is not allowed in internal disciplinary procedures. Recently, much debate has reflected on legal representation. Neither the Code of Good Practice: Dismissal or the LRA allows for legal representation. Caution, however, should be exercised when legal representation is requested. Under certain circumstances it should be considered by the company. This should be seriously considered when:

• A company is using a legal practitioner to act as complainant. Clearly, under these circumstances, it will appear to be unfair to refuse legal representation.
• The details of the case warrant so.
• Nature of the charges warrant so.
• The degree of factual and legal complexity involved in the case.
• The nature of the prejudice to an employer in permitting legal presentation.
• Consistency regarding previous admittance of a legal practitioner.

It is extremely unlikely, however, that the CCMA or courts would introduce a applicable right to legal representation in disciplinary hearings.

Click here to view a video on representation at Senior Level.