Written by Zamazulu Mzulwini
A disciplinary hearing can result in an employee being dismissed and unemployed for an extended period of time.
Schedule 8 of the Labour Relations Act, 66 of 1995 (LRA) gives an employee the right to representation in a disciplinary hearing by either a fellow employee or a trade union representative, also known as a shop steward.
Employers often have professionals with a legal background, either employed by them or on an outsourced basis, to assist them in their disciplinary processes. Untrained shop stewards, on the other hand, often have a very limited understanding of the disciplinary processes and the law, and as a consequence provide employees with inadequate representation.
Section 185 of the LRA provides that “every employee has the right not to be unfairly dismissed or subjected to unfair labour practices”. Schedule 8 of the LRA deals predominantly with the procedural elements of a fair disciplinary hearing. A dismissal will be held to be unfair if the employer cannot prove that the reason for the dismissal was fair and that it was effected in accordance with a fair procedure.
Shop stewards, elected by union members, are trusted to fight on behalf of employees for fairness in the work place. However, in order to provide adequate representation to employees in disciplinary hearings, they have to have a broad understanding of the applicable laws, procedures and policies. For instance, they have to be able to identify the rules that were allegedly breached, assess whether the applicable disciplinary procedures have been complied with and assess what an appropriate sanction would be, which may require more than the basic training that a trade union would provide. It is also imperative that shop stewards representing employees with mental health problems and in discrimination claims have the necessary sensitivity training to deal with such issues appropriately.
Sectors such as finance, engineering, information technology and supply chain management could also require detailed operational knowledge in order for a shop steward to be in a position to present an adequate defence in a disciplinary hearing.
When shop stewards are required to deal with complicated cases with voluminous documents, a lack of skill or knowledge could result in hearings taking much longer than they should.
It therefore does not come as a surprise that employees often request legal representation (as opposed to representation by a shop steward) in internal disciplinary hearings and that the courts have ruled that it should be granted where fairness requires it (see, for example, MEC Department of Finance, Economic Affairs and Tourism: Northern Province and another V Mahuani (2004) 25 ILJ 2311 (SCA)).
Employers who intervene by proving free additional training to its shop stewards, could therefore save time and money, avoid unnecessary internal and external disputes (in the CCMA and Bargaining Councils) and promote sound labour relations.