Section 64(1)(b) of the Labour

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1 Vol. 22 No. 5 December 2012 Giving notice of strike action Constitutional Court splits in affirming a wider interpretation by P.A.K. le Roux Section 64(1)(b) of the Labour Relations Act, 66 of 1995 (LRA) states that a trade union seeking to embark on a protected strike, or an employer seeking to institute a protected lock-out, must give notice of such a strike or lock-out in accordance with its provisions. At first sight this provision is deceptively simple in its formulation; but it has been the subject of a number of disputes and court decisions. These were discussed earlier this year in CLL Vol 21 No 7. In the intervening period two further decisions have been issued, one by the Constitutional Court, the other by the Labour Court. These decisions will be discussed in this contribution. Equity Aviation had initially taken the view that the strike by SATAWU members was unprotected, it later conceded that the strike was indeed protected. But this issue was only of passing importance in relation to the real issue in dispute. This case dealt with the fairness of the dismissal of employees who had not been members of SATAWU but who had also joined the strike in support of the wage demand. Equity Aviation dismissed these employees (hereafter referred to as the dismissed employees ) because their participation in the strike was unprotected; it took the view that the strike was unprotected because they Managing Editor: P.A.K. Le Roux Contributing Editor: Carl Mischke Hon.Consulting Editor: A.A.Landman Published by Gavin Brown & Associates Box Tokai 7966 Tel: South Africa Transport & Allied Workers Union v Moloto NO & Another (Unreported CCT128/11 21/9/2012) The facts and the history This dispute arose from a strike called by the South African Transport & Allied Workers Union (SATAWU) in support of a wage demand made against an employer, Equity Aviation. Although In this issue.. Testing the fairness of promotions p46 Legal representation and disciplinary codes p49 Testing the fairness of promotions p46 Page 41

2 had not given notice of their intention to embark on a strike in support of the wage demand and that they could not rely on the notice of a proposed strike given by SATAWU on behalf of its members. The dismissed employees argued that their dismissal was automatically unfair because their participation in the strike had indeed been protected. The Labour Court found that the dismissed employees had, in fact, been members of SATAWU when they were dismissed and could therefore rely on the notice given by SATAWU. It also held that, even if this was not the case, the dismissed employees did not have to give notice of their intention to embark on strike action. Equity Aviation took this decision on appeal to the Labour Appeal Court ( LAC ). The LAC was divided on the issue. The majority came to the conclusion that the strike was protected. One judge, Zondo JP, decided that the strike was unprotected. Equity Aviation also took this decision on appeal to the Supreme Court of Appeal (SCA). In a unanimous decision the SCA endorsed the approach adopted by Zondo JP. It was then the turn of the dismissed employees to take the matter on appeal to the Constitutional Court. The Constitutional Court was also split on the issue. The minority decision found that the strike was unprotected. The majority decision held that it was protected. The decisions of the Labour Court, the LAC and the SCA were discussed in CLL Vol 21 No 7 and these decisions will not be dealt with in this contribution. Only the Constitutional Court s decision will be discussed. It is evident, however, that the approaches adopted by the both the majority and the minority decisions are reflected in the earlier decisions of the LAC and the SCA and the Constitutional Court decision reflects a debate contrasting two approaches to the interpretation of s 64(1)(b) in particular and the LRA in general. Interpreting s 64(1)(b) two approaches Section 64(1)(b) states that, provided that the other requirements of s 64 have been met, a strike will be protected if at least 48 hours notice of the commencement of the strike, in writing, has been given to the employer It was argued on behalf of the dismissed employees that the language used by the legislature indicated that s 64(1)(b) does not require every employee to give notice of his or her intention to participate in a strike. In addition, this interpretation was consistent with the Constitution and the purpose of the LRA. If employees were required to do more when giving notice of an intention to strike the employer would gain an unfair advantage in the power play that constitutes a strike and undermine the right to strike and the effective resolution of disputes. Equity Aviation s legal representatives (or rather, more accurately, the representatives of the liquidators who were winding up Equity Aviation) argued that, in order for a notice given in terms of s 64(1)(b) to serve any purpose at all, notice of the proposed strike had to be given by or on behalf of all persons or parties who intended to strike. This would promote orderly collective bargaining. The minority decision The minority decision expresses its view as to how the section should be interpreted as follows - [20] Thus, the provisions of the Act must be interpreted purposively so as to give effect to the Constitution, the objects of the Act itself and the purpose of the provisions in issue. But, this approach does not necessarily equate to an expansive construction of the provisions of the Act. This is so because the purpose of the Act may well require a restrictive interpretation of the particular provisions so that the exercise of a protected right is not unduly limited. Therefore, due regard must be had to the express language used in the provisions under consideration. Furthermore, care must be taken against unduly limiting a fundamental right which has been conferred (as in this case) without express limitation by reading implied restrictions into it. (Footnotes omitted). It then goes on to refer to the often-quoted decision of the LAC in Ceramic Industries Ltd t/a Betta Sanitary Ware v National Construction Building & Allied Workers Union (2) (1997) 18 ILJ 671 (LAC) where it was held that the notice referred to in s 64(1)(b) serves two purposes - Page 42

3 As the Supreme Court of Appeal found, if a notice gives an employer no indication of which of its employees might strike, it is nigh impossible to conceive how the employer will prepare properly for the impending power play. How will it make an informed decision as to whether or not to yield to the employees demands? And, if it resists, how will it take proper steps to protect its business, the employees and the public and engage meaningfully in pre-strike regulatory discussions regarding issues such as picketing rules? The minority in SATAWU v Moloto NO & Another The first is to enable the employer to take stock and to decide whether or not to concede the demand being made by the union or employees. The second is to enable the employer to take steps to protect the business if the strike takes place. In this way the notice of a proposed strike serves to promote orderly collective bargaining one of the primary objectives of the LRA. Although s 64(1)(b) is silent as to who has to give notice of proposed strike action, this does not mean that a literal interpretation of the section has to be adopted. The underlying purpose of the section requires that the employer should know who will be embarking on strike action. [27] To my mind, the absence of an identified subject in this regard creates ambiguity that cannot be cured by a literal approach to the wording of the section. And, in my view, the purpose of the section and the Act s primary objects negate the applicants contentions. As the Supreme Court of Appeal found, if a notice gives an employer no indication of which of its employees might strike, it is nigh impossible to conceive how the employer will prepare properly for the impending power play. How will it make an informed decision as to whether or not to yield to the employees demands? And, if it resists, how will it take proper steps to protect its business, the employees and the public and engage meaningfully in pre-strike regulatory discussions regarding issues such as picketing rules? The minority decision also rejected an argument by the dismissed employees that, if a literal interpretation of s 64(1)(b) is not adopted, this would could cause significant problems for non-unionised employees wanting to embark on a protected strike thus eroding their bargaining power. For example, either employees would have to give notice individually or appoint an agent to give notice on their behalf. If the latter option was utilised, employers could raise the issue whether the agent had the authority to give notice on behalf of all or some of the potential strikers. Illiterate employees could also encounter problems. This was rejected on the basis that these problems were more apparent than real, provided that a proper, non-technical and sensible reading of the relevant words was adopted. The minority decision also referred to a factual situation sketched by one of the LAC judges supporting the view that a strike notice should also be given by nonunionised employees. This was the example of an employer employing employees at various sites throughout South Africa who receives notice of a proposed strike from two employees employed in a small branch. An employer receiving this notice would probably take the view that the envisaged strike did not pose a significant risk to its operations and would thus not be prepared to concede their demand. The employer would also probably take minimal measures to counter the effects of the strike. However, what if on the day of the strike most of the workforce Page 43

4 employed at all the other sites in South Africa embarked on strike action? Had the employer known of this support for the strike it may well have conceded the demand or adopted more far-reaching measures to keep its business running during the strike. The Court found this example to be plausible and instructive. The emphasis placed on the need for orderly collective bargaining as well as the decision s view that the right to strike is an individual right (albeit exercised collectively) is illustrated by the following excerpt - [33] It is so that industrial action is, by its very nature, disruptive. However, although strikes are generally intended to impose a punitive cost on an employer in order to force its hand and achieve a desired goal, the striking employees themselves and the public too suffer the brunt of the disruption. The volatility of industrial action must, therefore, rank highly among the issues that the Act s primary objects, of promoting orderly collective bargaining and effective resolution of labour disputes, seek to address. It is as well to remember the Act s purposes, amongst others, to achieve peaceful labour relations in an orderly, democratic workplace and a thriving economy and that the right to strike is also an extension of the collective bargaining process. An interpretation that results in chaos and disturbs the desired balance of labour relations that is fair to both employees and employers is untenable. [34] Furthermore, the applicants stance overlooks the inherent character of the right to strike. The fact that it is effectively exercised collectively does not change its true nature. It remains an individual right exercised by individual choice as is evident from the wording of both the Constitution and the Act. To have any worth, it must be connected to the person who intends to exercise it. It must follow that notice of that intention, which, significantly, protects the employee as well, must be given by or on behalf of all those intending to exercise the right. And on that score, non-unionised employees have relatively simple options available to them which make it unnecessary that each employee must individually issue a separate notice. They may compile a record of their particulars or seek inclusion in the notice of the trade union if there is one at their workplace. What is ultimately required is a notice that makes it possible for the employer to reasonably identify the employees that may strike. And whilst this requirement may well place a burden on the exercise of the right to strike, the constitutionality of the provisions is not in the balance and it is therefore unnecessary to resolve the question. The minority decision also rejects an argument based on s 64(1)(a) of the LRA, which provides that the issue in dispute that gives rise to a strike should first be referred to conciliation. It was argued that this section does not require that every employee who intends to strike should be party to the referral of the dispute to conciliation. If this is the case why should every employee have to give notice of participation in a strike? This was rejected on the basis that the two subsections serve different purposes. Finally, the minority decision stated that if the notice required in terms of s 64(1)(b) was reduced to the technical and formal notice argued for on behalf of the dismissed employees, the notice requirement would be reduced to an empty husk which does not take into account the objects and purposes of the LRA. On this basis the strike was held to be unprotected and the dismissals were found not to be automatically unfair. The majority approach The majority decision makes an interesting point right at the beginning of its judgment which actually eliminates the need to deal with the approach to be adopted in interpreting s 64(1)(b). It points out that Equity Aviation had recognised SATAWU as the bargaining agent for all its employees. It had also entered into an agency shop agreement with SATAWU. This meant that, for the purposes of wage negotiations at least, SATAWU represented its members as well as the dismissed employees. This also meant that the dismissed employees were part of the collective bargaining process through SATAWU. They had no right to bargain in respect of their wages. If agreement had been reached on wages they would Page 44

5 "Provided that the strike notice sets out the issue over which the employees will go on strike with reasonable clarity, these cases show that orderly collective bargaining and the right to strike, in its proper sense as a counter-balance to the greater social and economic power of employers, has been considered to be well served by the acceptance of a single strike notice. The majority in SATAWU v Moloto NO & Another have been bound by this agreement. Against this background Equity Aviation could not have been under the impression that the notice given by SATAWU had only been given on behalf of its members and nobody else. It was unnecessary for the dismissed employees to have given notice. This had been done for them by SATAWU. Presumably because of the approach adopted in the minority decision and also because of the importance of the issue, the majority decision nevertheless goes on to deal with the way in which s 64(1)(b) must be interpreted. The approach to the interpretation of this subsection is summarised at the outset as follows The right to strike is protected in the Constitution as a fundamental right. Unlike some other rights protected in the Constitution the right to strike is not subjected to any express limitations. Such a right should therefore not be cut down by reading implicit limitations into it. When statutory provisions such as s 64(1)(b) introduce a limitation on the right to strike by setting procedural requirements these provisions should be interpreted in a manner which is least intrusive of the right, provided that the text of the provision is reasonably capable of bearing that meaning The importance of the right to strike is emphasised. The right is based on the recognition of disparities in the social and economic power held by employers and employees. It is also pointed out that the right to strike bolsters freedom of association and reinforces other social and political rights and is significantly more than merely a means to an end. The right to strike is also an integral part of the collective bargaining process. [61] In summary then, the right to strike must be seen in the context of a right protected in order to redress the inequality in social and economic power in employer/employee relations. It also has associational aspects to it which enhance and reinforce other social and political rights in the Constitution, particularly freedom of association. It is an integral part of collective bargaining and can be exercised only collectively, not individually. The majority decision then goes on to consider the wording of s 64(1)(b) and points out that it contains only one express requirement regarding the content of the notice, namely that at least 48 hours notice of the commencement of the strike must be given. It also makes the point that the subsection only envisages one strike in respect of one issue in dispute and that, if this is the case, there seems to be little in logic or in language to suggest that more than one notice in relation to a single strike is necessary. Nothing more should be read into the subsection than that what is expressly there. This interpretation is the one that best conforms with the spirit, purport and objects of the Bill of Rights in that it places less limitation on the right to strike than that adopted in the minority decision. Central to the majority decision s approach to the interpretation of s 64(1)(b) is the view that reading more into the subsection than merely requiring information as to when the strike will commence will create uncertainty and give employers the ability to limit the right to strike through, for example, interdicts sought on the basis that the notice does not fully comply Page 45

6 with the subsection as extensively interpreted by the courts. This is illustrated in the following excerpt - [82] Where does the purpose of full disclosure of information lead? Does it require stating the location of the strike? Or for how long it will last? Or more than one notice where, as here, the dismissed strikers did not belong to the majority union? Or whether there may be more than one strike at different times and places in relation to the same dispute referred to conciliation? [83] The contrast with the minimal express requirements of section 64(1)(b) is stark. All that is expressly required in terms of section 64(1)(b) is a single notice stating when the strike will start. [84] That requiring more than this will lead to uncertainty and a further chilling effect on workers reliance on their right to strike is illustrated by the facts of this case. The employer initially contested the dismissed strikers right to participate in the strike on the basis that they were not included in the dispute referred for conciliation under section 64(1)(a). That stance has now been abandoned in favour of the present ground based on the ambit of the notice. It requires little imagination to see that the opportunity for objection to the validity of strike notices will be greatly increased if fuller information is required in the notice on the basis that it allows employers to prepare for the power play of the strike. On this basis the majority decision came to the conclusion that the dismissed employees had participated in a protected strike and that their dismissals were automatically unfair. Comment Thus concludes a legal process on a controversial issue that took place over a number of years and involved 18 judges of various degrees of seniority in the judicial hierarchy. Interestingly, if one only goes according to numbers, a majority of the judges differed from the decision of the majority in the Constitutional Court. At first sight the message of the majority decision is clear. The Courts must not introduce or create limitations on the right to strike that cannot be founded in the express wording of the relevant sections of the LRA itself. But the majority decision itself seem to qualify this approach in at least one respect. As a final justification for the approach it adopts the majority decision embarks on a review of Labour Court and LAC decisions which show that s 64(1)(b) has been interpreted in such a way as not to limit the right to strike. After this review the following statement is made [90] Provided that the strike notice sets out the issue over which the employees will go on strike with reasonable clarity, these cases show that orderly collective bargaining and the right to strike, in its proper sense as a counter-balance to the greater social and economic power of employers, has been considered to be well served by the acceptance of a single strike notice. (Author's emphasis. added) The proviso seems to indicate that the Constitutional Court accepts that the strike notice must set out the issue over which the strike will be called with reasonable clarity. But no such requirement can be found in s 64(1)(b) itself. The Constitutional Court, without any debate or express justification, seems to have accepted an implied limitation to the right to strike. Transnet Ltd v SA Transport & Allied Workers Union & Others (2011) 32 ILJ 2269 (LC) If it is accepted that employees must describe the issue over which the employees will strike with reasonable clarity, must the notice also indicate in what workplaces the strike will take place? In the Transnet decision the Court came to the conclusion that the strike was unprotected, inter alia because the union had not indicated whether the strike would take place only at the depot where the dispute had arisen or whether it would also take place at other workplaces of the employer. This decision precedes the decision of the Constitutional Court and, although the indication given by the majority decision that the issue in dispute must be described with "reasonable clarity" has muddied the waters, it is at least debatable whether this decision will survive the Constitutional Court s majority decision. P.A.K. le Roux Page 46

7 Testing the fairness of promotions What tests apply when the CCMA arbitrates unfair labour practice disputes? by P.A.K. le Roux In Sidumo & Another v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC) the Constitutional Court decided that arbitrators, when considering whether dismissal was a fair sanction to have imposed for a particular disciplinary offence, need not defer to a manager s decision in this regard. It is for the arbitrator to decide whether dismissal was a fair sanction. However, in coming to this decision, the arbitrator should take into account the reasons advanced by the employer for dismissing the employee. What is interesting to note is that no debate has taken place as to whether the same approach should be applied by arbitrators when considering unfair labour practice disputes, and in particular disputes relating to promotions in the context where the actual merits of the decision (as opposed to procedural issues) to promote one employee instead of another is considered. In CLL Vol 20 No 5 we dealt with two interesting decisions in which both judges of the Labour Court clearly were reluctant to second guess managerial decisions in this regard. In this contribution we deal with two further recent decisions dealing with promotions. The first is the decision of the Labour Court in City of Tshwane Metropolitan Council v South African Local Government Bargaining Council and Others [2011] 12 BLLR 1176 (LC). The employee in this case had applied for the post of Manager: Bulk Services in a department of the City of Tshwane that appears to have been responsible for the supply of electricity to the residents of the City. Despite the fact that he met all the requirements set for appointment to the post, he was not appointed and he referred an unfair labour practice dispute to the relevant bargaining council. The arbitrator found that the decision not to promote the employee was unfair. Three primary factors seem to have motivated this decision. Firstly, he found that two members of the selection panel had been biased. This finding was based on an analysis of the scoring of the candidates in terms of the system adopted to assess the candidates. Secondly, affirmative action considerations were taken into account in deciding whether to promote the successful candidate in circumstances where there was no affirmative action plan in place. Thirdly, the successful employee did not meet the formal requirements set for the post. The arbitrator ordered that the employee be appointed to the post, some three years after the decision not to promote him had been taken. The City of Tshwane took the matter on review. For our purposes the most important ground raised was that the arbitrator had substituted his own decision for that of the employer and that the arbitrator was not permitted to do so. The Court referred to the decision of the Constitutional Court in Pharmaceutical Manufacturers Association SA & Another: In Re Ex Parte President of the RSA & Others 2000 (3) BCLR 241 (CC) which expressed the view that, when reviewing administrative decisions, the courts should not easily substitute their opinions as to what is an appropriate decision to make for that of the administrative authority. The Court however, rejected this approach based on administrative law principles on the basis that an arbitrator is required to make a decision based on fairness. This meant that the arbitrator was entitled to enquire into the substance of the promotion CONTEMPORARY LABOUR LAW is published monthly from August to July of each year. Visit our website at www. workplace.co.za for information and subscription details. Subscription Enquiries : Gavin Brown & Associates INDUSTRIAL RELATIONS Tel : (021) Fax : (021) workplace.co.za ISSN X Copyright held by the authors. No part of this publication may be reproduced in any form without the prior written consent of the publishers. Page 47

8 decision. However, the Court also sounded a cautionary note in this regard based on the nature of employer decisions relating to promotion. [17] Having said this, it must be recognised that, unlike substantive fairness in dismissals, for which a closed list of legitimate reasons are recognised in terms of section 188(1) of the LRA, there are a myriad of factors which might legitimately be taken into account in the employment decision. These will vary from employer to employer and from post to post. Some employers will use sophisticated rating systems and competency testing to identify appropriate candidates for short listing and will strive for selection methods that minimise the effect of subjective factors on the final choice. Others may wish to balance objective criteria with more subjective assessments based, for example, on interviews. Where interviewing techniques are used, it should also be recognised that there will always be a degree of subjectivity present in such assessments, for which a certain allowance must be made, and an arbitrator considering the fairness of the failure to promote a candidate must be mindful of not having the benefit of first-hand interaction which takes place between interviewer and candidates. [18] Which criteria are used will depend on factors such as the employer s operational needs, organisational values, human resources policy, resources it is willing to devote to recruitment, the number of candidates it might have to consider for each vacancy and such like considerations, which generally are not prescribed by law. The Court then went on to espouse a rationality test for deciding whether or not a decision relating to promotion was fair or unfair. In doing so, it adopted the test formulated by Wallis AJ in Ndlovu v Commission for Conciliation, Mediation and Arbitration & Others (2000) 21 ILJ 1653 (LC) where the following was stated - (11) it can never suffice in relation to any such question for the complainant to say that he or she is qualified by experience, ability and technical qualifications such as university degrees and the like, for the post. That is merely the first hurdle. Obviously a person who is not so qualified cannot complain if they are not appointed. (12)the next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair. That will almost invariably involve comparing the qualities of the two candidates. Provided the decision by the employer to appoint one in preference to the other is rational, it seems to be that no question of unfairness can arise. In City of Cape Town v SAMWU obo Mngomeni & Others (unreported C1148/2010 7/9/2012) the employee concerned had applied to be promoted to the position of senior foreman. He was unsuccessful in his application and referred a dispute to the CCMA. The commissioner ordered that he be promoted to the position of senior foreman. The basis for the commissioner s award was that the employer s witness had conceded that the employee had the relevant qualifications for the job and that the employee had acted in the post for some time. This award was taken on review by the employer. During the course of argument the employer s legal representative submitted that - it is not the place of an arbitrator to instruct an employer to promote a candidate into a position. The Court referred to two earlier decisions of the Labour Court dealing with this issue where, according to the Court, tests based on administrative law principles were applied. The Court rejected this approach and expressed the view that the the yardstick of fairness to both parties, so successfully applied by our tribunals and courts should be applied and that the test of irrationality is not, in itself, the test to be applied. However, the fact there is such irrationality in the decision would impact Page 48

9 on the fairness thereof. In this case the arbitrator had utilised the test of fairness and his award could therefore not be overturned. It is difficult to decide what to make of this decision and the approach it adopts. It is self-evident that this type of dispute deals with the fairness or otherwise of the decision to promote or not to promote. The question is whether the commissioner should be able to overturn an employer s decision on who should be (or not be) promoted simply on the basis of the commissioner's sense of what is fair, or whether there should be some measure of deference shown to the employer's decision. However, it can argued that the Court was of the view that the commissioner sense of fairness should prevail over that of the employer. What is of interest is that neither judge found it necessary to refer to the Sidumo decision. P.A.K. le Roux Legal representation and disciplinary codes How it can be allowed even where it's not allowed by P.A.K. le Roux Item 4 of the Code of Good Practice: Dismissal - makes it clear that an employee facing a disciplinary enquiry is entitled to be represented at this enquiry by a shop steward or a fellow employee. No mention is made of an entitlement to be represented by an attorney or advocate (ie a legal practitioner.) This has not stopped employees from arguing that they are entitled to such representation. There is some authority for the view that, in certain circumstances, an employee may be able to argue that fairness requires that she be permitted legal representation see MEC:Department Of Finance, Economic Affairs & Tourism, Northern Province v Mahumani (2004) 25 ILJ 2311 (SCA) and Hamata & Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee & Others 2002 (5) SA 449 (SCA). This contribution discusses three recent decisions where this issue was discussed. The first is the decision in Ngcongo v University of South Africa & Another (2012) 33 ILJ 2100 (LC). The employee in this matter was employed as a legal advisor. His duties included advising the employer on labour matters and representing the employer in CCMA proceedings. He was summonsed to attend a disciplinary hearing on various charges. The employee was represented at the hearing by a co-employee who was a senior lecturer in the employer s College of Law. At the commencement of the hearing the employee objected to the employer being represented by an attorney appointed by the employer for this purpose. This objection was based on clause 7.2.1(ii) of the employer s disciplinary code. This provided that ER & HR will represent the university in the matter, alternatively ER and HR Pol must nominate a suitably qualified employee of the university for this purpose. It was argued that this clause did not permit legal representation. The chairperson of the disciplinary panel rejected this argument and concluded that he had a discretion to decide whether legal representation should be permitted. He decided to permit the employer to be legally represented because of the complexity of the matter, the potential prejudice involved, the legal issues involved and generally on the basis of considerations of fairness. The employee was informed that he would also be granted the right to make use of legal representation. The employee then sought an order from the Labour Court reviewing and setting aside the decision of the chairperson. The Court dismissed the application on the basis that it lacked urgency but nevertheless decided to consider the merits of the application. It pointed out that it is accepted that disciplinary codes usually constitute guidelines and that employers may be able to depart from the provisions of a code in exceptional or appropriate circumstances. It came Page 49

10 to the conclusion that in this case there were exceptional and appropriate circumstances present. It also added that [19] Although the principle that a disciplinary code constitutes merely a guideline and that a deviation from a disciplinary code may be warranted in certain exceptional and appropriate circumstances is supported by case law, I am in agreement with Mr Redding that it is unlikely that this court will hold that legal representation can never be permitted under any circumstances even where the code states that external legal representation is not permitted. The Court then considered the reasonableness of the chairperson s decision and found that it was indeed reasonable. But what is the position when the disciplinary code is contained in a collective agreement? This issue was considered in Public Servants Association of SA obo Khan v Tsabadi NO & Others (2012) 33 ILJ 2117 (LC). In this case the Labour Court was considering an application to review and set aside an arbitrator s award. One of the issues considered by the Court was whether the employee had been entitled to legal representation at her disciplinary enquiry. The answer to this question largely turned on an interpretation of a bargaining council resolution (which constituted a collective agreement) which reads as follows In a disciplinary hearing, neither the employer nor the employee may be represented by a legal practitioner, unless - (i) the employee is a legal practitioner or the representative of the employer is a legal practitioner and the direct supervisor of the employee charged with misconduct; or, (ii) the disciplinary hearing is conducted in terms of paragraph 7.3.c. (iii) For the purposes of this agreement, a legal practitioner is defined as a person who is admitted to practice as an advocate or an attorney in South Africa. The Court pointed out that this provision makes it clear that no legal representation would be permitted unless the circumstances envisaged in sub-clauses (i) and (ii) were present. Clause (ii) referred to a form of predismissal arbitration.. These circumstances were not present in this case. The Court then went on to consider whether, this clause notwithstanding, the chairperson retained some form of discretion to permit legal representation. It came to the conclusion that this was not the case. It accepted that, as a general rule, an employee has no right to legal representation in a disciplinary enquiry. But it also accepted that the chairperson of a disciplinary hearing retained a discretion to permit legal representation if fairness required this. However, in this case the position was different. Here the issue was regulated in a collective agreement and this did not grant the chairperson a discretion. The decision in SA Municipal Workers Union obo Mathabela v Dr JS Moroka Local Municipality (2011) 32 ILJ 2000 (LC) is also of interest. The employee in this matter had been suspended with pay and had been informed that she would be subjected to disciplinary proceedings at which the employer would be represented by a legal practitioner and at which the chairperson would also be a legal practitioner. She challenged the right of the employer to utilise legal practitioners in this capacity. When the employer insisted on going ahead with the enquiry on this basis the employee approached the Labour Court for an order preventing the employer from doing so. The Court granted the order on the basis that a collective agreement which regulated the convening of disciplinary enquiries had been incorporated into the employee s contract of employment. This agreement did not permit the employer to utilise legal practitioners in the capacities envisaged. P.A.K. le Roux Page 50