Should employees be entitled to legal representation during disciplinary hearings in South Africa?

Abstract

This article demonstrates that employees in South Africa are denied the right to appoint external legal representation of their own choice during disciplinary inquiries. It argues that this violates their fundamental rights such as dignity, fair labour practice, and practicing their chosen occupation freely. Although Item 4(1) of Schedule 8 of the Code of Good Practice: Dismissal allows accused employees the opportunity to be represented by a trade union representative or a fellow employee, this Code is silent on whether an accused employee can obtain external legal representation of their choice during disciplinary inquiries. It further illustrates that accused employees who are brought before disciplinary hearings are placed in a position where they are forced to rely on their fellow employees or trade union officials who may not possess the skills and competency to adequately present their defences. Further, if they wish to seek external legal representation, they need to request permission from chairpersons of disciplinary hearings who usually refuse to grant such permission. This article advances an argument that it is constitutionally impermissible to adopt a paternalistic approach where dismissal is a likely sanction to subject accused employees to the discretion of chairpersons of disciplinary inquiries to decide whether to allow external legal representation. It argues further that accused employees should have a right to decide for themselves whether to obtain external legal representation of their own choice during disciplinary hearings.