Anyone who has ever been subjected to a disciplinary hearing by their employer will tell you that it is one of the most unsettling things that they have ever experienced. This is due to unscrupulous employers who wish to cut corners and get rid of a problem employee as quickly as possible.

In terms of the Basic Conditions of Employment Act 75 of 1997 along with the Code of Good Practice, an employer who wishes to terminate an employee’s contract of employment must follow the correct procedure. In the event that the employment has been terminated due to misconduct a disciplinary hearing must be convened by the employer.

The disciplinary hearing is conducted after a notice has been delivered to the affected employee, informing the employee of the time, date and place of the hearing. The hearing often includes a paragraph which informs the employee that they are not entitled to legal representation, however this is not always the case.

Everyone has the right to fair labour practices. This right has been firmly entrenched in the Constitution of the Republic of South Africa. If the employer will have an unfair advantage due to his knowledge of the applicable labour law or due to his attorney being present the employee should be allowed legal representation.

Our courts have held that it is within the discretion of the chairperson of the disciplinary hearing to determine whether the procedure will be unfair due to a lack of legal representation. It is the employee’s duty to inform the chairperson that the employee would like to obtain legal representation during the meeting and to put forth reasons why the employee will be prejudiced should this request be denied.

If you feel like you have been subjected to an unfair and biased disciplinary hearing kindly contact one of our labour lawyers for a consultation in order to assess whether your constitutional right to fair labour practices has been infringed.

You may contact us at 011 897 1900, 076 777 1920 or info@tuckers.co.za or visit one of our three branches across the country.


Article contributed by Tristan Judge of Tuckers Incorporated.