Schedule 8(4)(2) of the Labour Relations Act, the Code of Good Practice, states that an employee can be represented by a fellow employee or a union representative during a disciplinary hearing. However, the question arises: What is the situation with representation if the employee is the union representative in the workplace or, more commonly known, the shop steward? Does their position entitle them to a right to representation by an external union official?
This was the very question the Labour Court, on urgent application, was required to decide on in National Union of Mineworkers v Petra Diamonds t/a Cullinan Diamond Mine (Pty) Ltd (J1607/17) [2017] ZALCJHB 304. In this matter, the company relied on the company policy, which stated: "An employee representative shall be a fellow employee, union member or shop steward employed by the company in the workplace or operations where the accused employee works."
The chairperson of the disciplinary hearing ruled that the union official did not have the required locus standi or the right or capacity to appear in lay terms. After that, the union proceeded with an urgent application. The Court required the union to provide the following three (3) grounds if they were to be successful in their application:
1) A Clear Right
The union relied on the rights conferred under Sections 12 to 16 of the Labour Relations Act. In contrast, the employer stated that company policy was clear in that it did not deny the employee any right. The employee still had the right to representation, but only by a fellow employee or shop steward in the employer's employ. The union also placed reliance on Item 4(2) mentioned above. However, the Court ruled that the employer had indeed averred that no such right exists and that the provisions of the employer's policy were clear. It further reiterated previous case law, in which the Labour Appeal Court clearly stated that the Court did not ordinarily intervene in incomplete disciplinary proceedings and noted that no "exceptional circumstances" were present in this matter that would have resulted in a grave injustice.
2) Irreparable Harm
The union further failed to prove irreparable harm as the Court found that the employee still had the right to be represented by the union's shop steward. The union seemed to consider the possibility that members might lose membership. However, it failed to convince the Court that this possible damage was wholly disconnected from the relief sought.
3) No Alternative Remedy
The Court again reiterated that it would only intervene in internal disciplinary processes if exceptional circumstances were present. In this matter, however, there were none. The union and employee would still have rights under Section 191 of the Labour Relations Act. They could refer the matter to the CCMA or applicable Bargaining Council if the outcome of the internal disciplinary hearing was, in their view, unfair.
This matter makes it clear that employees subjected to disciplinary processes do not have an automatic right to be represented by union officials, not by the employee of the employer, and that if they feel aggrieved by the outcome of an internal disciplinary hearing, they should follow the necessary procedures as set out in the Labour Relations Act.
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