THE RIGHT TO LEGAL REPRESENTATION AT A DISCIPLINARY ENQUIRY – A TRICKY ISSUE FOR EMPLOYERS BY KAREN FULTON & EVA MUDELY
The general rule in relation to legal representation at a disciplinary enquiry is that legal representation is not allowed unless the employer’s disciplinary code and procedure or the employee’s employment contract permits it. Generally, an employee may only be represented by a fellow-employee or trade union representative, and not a legal representative.
However, our courts have held that in cases where complex issues are at hand, legal representation should be allowed. If the matter is unusually complex involving complicated evidence and complex issues of law, the refusal of legal representation may well result in the disciplinary proceedings being regarded as unfair. If the matter is fairly simple, the evidence to be led straightforward, and there are no complex legal issues involved, the refusal of legal representation would, on the other hand in all likelihood, be considered to have been fair.
The test of whether or not to allow legal representation is whether or no the failure to do so would render the disciplinary proceedings procedurally unfair, and this would involve a consideration of the nature and complexity of the disciplinary charges, the degree of factual or legal complexity, the availability of a co-employee representing the employee, and the legal capabiliities of the initiator, the employee and the discplinary chairperson.
Where an employee requests to be legally represented at a disciplinary enquiry, and the company’s disciplinary code and procedure does not allow such representation, the employee should be informed that the company’s disciplinary code and procedure does not allow for legal representation at disciplinary enquiries. The employee should be asked to prepare an argument for the disciplinary enquiry chairperson on why legal representation should be allowed, despite the provisions of the company’s disciplinary code and procedure. The employee can bring a legal representative to the disciplinary enquiry for this purpose. The company would then also be able to be legally represented for this aspect of the proceedings. At the disciplinary enquiry, the chairperson should hear the legal representative purely on the issue of why legal representation should be allowed. The employer representative or a legal representative for the company would then be entitled to give reasons why legal representation should not be allowed.
The chairperson of the disciplinary procedure needs to properly apply his mind to the question of whether fairness in the circumstances dictates that legal representation should be allowed. In considering the request, the disciplinary enquiry chairperson, must consider all the circumstances of the case in order to determine whether the refusal would render the proceedings procedurally unfair. The chairperson will not be able to simply rely on the fact that the company’s disciplinary code and procedure does not allow for legal representation. To refuse an employee the right to legal representation irrespective of the circumstances of her case is inconsistent with the constitutional right to fair labour practices and the common law.
Karen Fulton is a director and Eva Mudely is a senior associate at Bowman Gilfillan