HomeOpinion & AnalysisColumnistsLawyers in disciplinary hearings: Persona non grata?

Lawyers in disciplinary hearings: Persona non grata?

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The right to be represented at a disciplinary hearing is a fundamental principle of natural justice. All company codes of conduct and National Employment Council codes provide for the right to representation in their procedures.

Section (4)(b) of Statutory Instrument 15 of 2006 entitles an employee appearing before the employer or disciplinary authority to be represented by either a fellow employee, workers committee member, trade union official or a legal practitioner.

According to Dr John Grogan in his book Workplace Law, the purpose of representation is threefold. Firstly, it gives the employee concerned moral support and helps balance the scales.

Secondly, it ensures to some extent that justice is seen to be done. Lastly, representation also helps level the playing field, especially in cases in which one of the parties is less experienced and knowledgeable than the other.

Most disciplinary codes confine representation to workers committees, trade union officials or fellow workers and some expressly exclude lawyers. So, is the right to be legally represented inalienable or not?

In common law, there is no inherent right to legal representation at internal disciplinary proceedings. As early as 1920, the Appellate Division of the High Court of South Africa in Dabner v SA Railways and Harbours (1920) decided that there was no common law authority for the proposition that a party had a right to legal representation before tribunals other than courts of law.

Since then, the role of lawyers in domestic tribunals has been the subject of intense debate in various jurisdictions locally and internationally.

Does the denial of legal representation breach the constitutional right to fair labour practices? This article seeks to explore the divergent views held by scholars and court judges on this subject. Even judges such as the famous Lord Denning took different positions at different times on the same issue!

In an English case of Pett v Greyhound Racing Association Ltd (1968), a licensed trainer of greyhounds had been denied legal representation at a disciplinary hearing, Lord Denning remarked: Mr Pett is here facing a serious charge . . . If he is found guilty, he may be suspended or his licence may not be renewed.

The charge concerns his reputation and his livelihood. On such an enquiry I think that he is entitled not only to appear by himself but also appoint an agent to act for him . . . Once it is seen that a man has a right to appear by an agent, then I see no reason why that agent should not be a lawyer.

It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weaknesses in the other side. He may be tongue-tied or nervous, confused or wanting his intelligence.

He cannot examine or cross-examine witnesses. We see it every day . . . If justice is to be done, he ought to have the help of someone to speak for him and who better than a lawyer who has been trained for the task?

However, in another case of Enderby Town Football Club Ltd v The Football Association Ltd (1971), Lord Denning had this to say: Is a party who is charged before a domestic tribunal entitled as to be legally represented? Much depends on what the rules say about it. When the rules say nothing, then the party has no absolute right to be legally represented. It is a matter for the discretion of the tribunal.

They are masters of their own procedure, and if they, in the proper exercise of their discretion, decline to allow legal representation, the Courts will not interfere.

Our local courts have grappled with the issue of legal representation over the years. In Vice-Chancellor, University of Zimbabwe v Mutasa (1993), which involved the expulsion of three students from the University of Zimbabwe, the issue of legal representation was dealt with.

Justice Nicholas McNally held that where an individuals career is at stake before a tribunal, he may be entitled as of right, by reason of natural justice, to legal representation if he so wishes.

This line of reasoning is similar to Lord Dennings argument in the Pett case above.

In Minerals Marketing Corporation of Zimbabwe (MMCZ) v John Mazvimavi (SC295/95), former Chief Justice Anthony Gubbay left the right to legal representation in a disciplinary hearing as an open question.

He said: In the sphere of employment law where a disciplinary code governs the conduct of employees, the right to be legally represented at an enquiry is dependent on the provisions of the code itself. The Labour Tribunal had ruled that MMCZs refusal to permit John Mazvimavi to be legally represented amounted to a violation of the principles of natural justice.

The learned judge of appeal overturned this judgment, arguing that MMCZs disciplinary procedures provided for representation by the workers committee and did not provide for legal representation.

In trying to define the audi alteram partem (listen to the other side) rule, High Court judge Justice George Smith in the case of Chirenga versus Delta Distribution (2003) ruled that where an employee charged for misconduct opts to have legal representation, and his request is turned down, the requirements of the audi alteram partem rule would not have been met, even where the code of conduct is silent on the right to representation.

Professor Lawrence Baxter, in his book Administrative Law disagrees. He argues that lawyers must generally be kept out of the internal disciplinary process because they make it become legalistic, expensive and slow (what he terms over-judicialisation of the process).

He notes that the right to legal representation is not an essential feature of the audi alteram partem principle, but agrees that in the interests of natural justice, legal representation must be allowed only under limited circumstances, for example, when disputes are of a complex nature.

In Bernard Chitepo v City of Mutare and the Minister of Local Government, Rural and Urban Development (SC 21/04), Chitepo claimed that he had been denied legal representation at his disciplinary hearing while other employees had been accorded the same in similar circumstances.

He submitted that he was therefore discriminated against contrary to section 23 of the Constitution of Zimbabwe which prohibits discrimination. While the court acknowledged that denial of legal representation to a party could make proceedings fatal, it was not persuaded by Chitepos arguments and accordingly threw out his constitutional appeal.

Even in the Public Service, the issue of legal representation has been raised. A report posted on the Progressive Teachers Union of Zimbabwes website in March last year complained that disciplinary committees constituted by the Ministry of Education, Sport, Arts and Culture denied teachers their right to legal representation by either barring legal representatives from attending the hearings or requiring them only to be present, but not saying anything during the proceedings.

As can be seen from the few cited examples, there appears to be no blanket entitlement to legal representation in disciplinary hearings. It is more of an exception rather than the rule.

But why should organisations be sceptical about allowing legal representation at internal hearings? In my opinion, if an employee seeks to be legally represented, that request should not be dismissed outrightly; otherwise this will provide a mechanism for an employee to challenge the fairness of a process.

Companies should ask themselves whether it is really necessary to deny an employee legal representation given that it is the employee who appoints his or her own legal representative and pays the cost. After all, the legal representative cannot change the mind of a chairperson or presiding official but will merely assist in asking the right questions ensuring that a correct decision is reached.

Even if a code expressly excludes lawyers, it is advisable for employers to entertain a request for legal representation by an accused person. The right to legal representation should only be denied if there are good reasons.

Isaac Mazanhi is a labour analyst. He writes in his personal capacity. He can be contacted on e-mail: imazanhi@hotmail.com

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