An employee facing a disciplinary hearing asks a simple question: can I bring my lawyer?

The answer is usually no. But “usually” is doing a great deal of work in that sentence, and the exceptions are worth understanding before you walk into the room.

The starting point: there is no automatic right

An internal disciplinary hearing is not a court. It is a workplace process, and the law expects it to be fair without being formal. Schedule 8 of the Labour Relations Act, the Code of Good Practice: Dismissal, contemplates a relatively informal enquiry in which the employee is told what the allegations are, given a reasonable opportunity to respond, and allowed assistance.

That assistance is ordinarily a fellow employee or a trade union representative. It is not, as a matter of course, an attorney.

So, if you are asking whether you are entitled to legal representation simply because your job is on the line, the answer is no. Serious consequences alone do not create the right.

But an employer cannot ban it outright either

This is where most disciplinary codes get it wrong, and where employees most often give up too early.

A code that purports to exclude legal representation absolutely, in all circumstances, no exceptions, is not sustainable. The chairperson must retain a discretion to allow representation in an appropriate case. A blanket prohibition removes that discretion, and a decision taken under a rule that leaves no room for judgement is vulnerable.

The correct position is therefore not “never”. It is “not as of right, but capable of being permitted”. That distinction explains why so many of the categories below end with the same four words: you still need to apply.

Where representation is available without having to persuade anyone

The employer’s own disciplinary code says so. Read the code first, before anything else. If the policy grants employees the right to legal representation, that is the end of the enquiry. An employer is held to its own procedures, and departing from them is itself a procedural fairness problem.

The employer is legally represented. If the employer briefs an attorney to present its case, the balance changes. Permitting one side a lawyer while refusing the other is difficult to defend as a fair process. Worth checking carefully: an employer sometimes uses an “HR consultant” or an “independent chairperson” who is in fact legally qualified. Ask directly who is leading the employer’s case and what their qualifications are.

The forum is an external tribunal whose rules permit it. Where the matter is not heard by an internal panel at all but referred to a private arbitration tribunal, that tribunal’s own rules govern representation, not the employer’s code.

Senior public service positions. Certain levels of the public service carry different representation entitlements under the applicable public service framework.

Where you can apply, but must persuade

Everything in this second group is available in principle and discretionary in practice. You are not entitled to it. You are entitled to ask for it, and to have your request properly considered.

• Directors of public entities.
• Management at a university with a law faculty.
• Referrals to the CCMA under section 188A of the Labour Relations Act, where a disciplinary process has followed a grievance and the employee says the hearing is retaliation.
• Section 188A referrals by whistleblowers, where the employee has made a protected disclosure.
• Disability or impairment that materially affects the employee’s ability to present a case. This includes psychological impairment, not only physical.
• Genuinely complex legal issues that an unassisted employee cannot reasonably be expected to navigate.
• Parallel criminal exposure, where what the employee says at the disciplinary hearing may be used against them in a criminal matter arising from the same conduct.

What persuades a chairperson

An application for legal representation is not granted because it is asked for politely. It succeeds when the chairperson is satisfied that refusing it would make the hearing unfair. In practice, that turns on:

• The complexity of the issues, legal and factual. A contested interpretation of a policy, a technical regulatory question, or a case built on documentary evidence and expert opinion is a different exercise from an attendance dispute.
• The seriousness of what is at stake. Dismissal from a career position with professional consequences weighs more heavily than a written warning.
• The comparative ability of the two sides. This is usually the decisive factor. Who is presenting the employer’s case, what training do they have, and can this employee realistically meet that case alone?
• Real, identifiable prejudice. Not “I would feel more comfortable”, but “I cannot cross-examine the employer’s expert without assistance”.

A note if you already have a union representative

This matters, and it is often glossed over.

Having a union representative is not a bar to applying for legal representation. But it does weaken the strongest argument available to you, which is that you cannot meaningfully present your own case. An experienced shop steward is not nothing. A chairperson weighing comparative ability will take that assistance into account.

If you are in that position, the application needs to explain specifically what the union representative cannot do in this matter, rather than arguing in general terms that a lawyer would be better.

What to do, practically

1. Read the disciplinary code before you do anything else. The answer may already be there.
2. Apply in writing, in advance. Do not raise it for the first time on the morning of the hearing.
3. Give reasons tied to the factors above, not to preference. Identify the specific complexity, the specific prejudice, the specific imbalance.
4. Put up evidence rather than assertions. Where the application rests on impairment, a medical report carries weight that a bare statement does not. Where it rests on complexity, point to the documents.
5. If the application is refused, ask that the refusal and your objection be recorded. A chairperson who refuses without considering the application at all, or who applies a blanket policy rather than exercising a discretion, has created a procedural fairness point that may matter later.

A refusal is not automatically unfair. The question on review is not whether a different chairperson might have decided differently, but whether the discretion was exercised at all, and exercised reasonably.

The honest answer

You can always ask. Whether you are granted a lawyer depends on the code, the forum, who is on the other side of the table, and how well the application is framed.

Employees underestimate how much the framing matters. Employers underestimate how exposed a blanket refusal leaves them.

Malcolm Lyons and Brivik Attorneys are leading experts in the field of labour law in South Africa. To discuss whether you have a case, contact our offices below:

Telephone:
Cape Town Office:
Telephone: +27 (0) 21 425-5570
E-mail: [email protected]

Johannesburg Office:
Telephone: +27 (0) 11 268 6697
Email: [email protected]

Contact form: