It is trite that in disciplinary hearings of employees, representation is allowed. Representation in this sense means internal representation by colleagues. Very rarely is outside representation allowed because companies regulate the issue of representation through their disciplinary codes.
For unionised workplaces, naturally, shop stewards will represent the accused employees in disciplinary hearings. This is important as it is in line with the established principle expressed in the Latin maxim audi alteram partem, to hear the other side of the story which has everything to do with the ability for one to express themselves in the hearing and also be ensured that their right to a fair hearing is safeguarded by the presence of a representative.
But what if the accused employee is a shop steward? Are they entitled to representation? If they are, is representation referring to external representation in a form of a union representation? This seems like an academic discourse but it has serious practical implications and has created confusion in employment law circles as how disciplinary hearings involving shop stewards should be conducted. To solve this conundrum, we need to first refer to the Labour Relations Act (hereinafter referred to as “the Act”) as our first point of reference.
Schedule 8 item 4 (2) provides that discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.” The Act is clear in terms of this schedule on the procedural requirements for initiating a disciplinary enquiry for shop stewards, the union must be informed and consulted about the hearing (and the merits thereof). Note, however, it is silent on the issue of representation of the shop stewards by the union itself after consultation with same by the company.
So we need to refer to case law to answer the question that still remains even after having consulted the Act and to solve what can be viewed as a lacunae in the Act in terms of representation, depending which side of the fence you are arguing from, of course. Trade unions often argue that the Act should be read and interpreted to include external representation of shop stewards by trade unions and companies interpret the Act to impose a duty only to inform and consult, nothing more.
In East Cape Agricultural Co-Operative v du Plessis & Others the arbitrator found that the dismissal was procedurally unfair because the employee was a shop steward and had not been represented by a union official at his investigation.
This decision was, however, overturned on review because this issue was not raised in the arbitration and the arbitrator had therefore breached theaudi alteram partem rule. In Numsa obo Thomas v Murray and Roberts Alucast it was found that the disciplinary hearing for fraud was not legally complex and therefore the argument by the trade union that the employee was entitled to be represented by an external trade union official instead of a shop steward was rejected.
In Department of Finance, Economic Affairs and Tourism: Northern Province v School Godwill Mahumani (case no. 478/03) the Supreme Court of Appeal held that the accused employee at a disciplinary hearing, under certain circumstances, be entitled to be represented by a legal (external) representative at a disciplinary hearing (my emphasis). The Court found that the company’s disciplinary code was a guideline that may be departed from under appropriate circumstances.
It is important though that from the case discussed above, the fact that the company’s code does not allow for external representation means the code is cut in stone. What this means is that chairperson’s are given the a discretion to decide on whether to deviate with the code regarding representation or stick to it.
So practically, if a shop steward brings along a union official who is not employed by the company to represent him or her, the chairperson should continue with the hearing and deal with the preliminaries. Rule 25 (1)(c) of the CCMA rules is often used by chairperson’s to deal with the issue of external representation in exercising their discretion. The rule says that you must allow when both parties consent or if it is unreasonable to expect the party to deal with the dispute without legal representation after considering the complexity of the dispute; the public interest and comparative ability of the opposing parties or their representatives to deal with the dispute.
Another important point to make also is that representation by a union official or other person who is not an employee of the employer will be allowed to represent the employee automatically only where there is a recognition agreement providing for such representation.
So to answer the question of whether do shop stewards have an automatic right to representation, having considered the vast body of authority above, the answer is no. There is a duty to inform and consult with the union which does not necessarily create a right but establishes good practice when handling disciplinary hearings for shop stewards.