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New ruling on the right to legal representation in unfair dismissal disputes

Dismissals for reasons of misconduct and incapacity (‘incapacity’ being poor work performance or poor health) are the most frequent claims that employees report to the Dispute Resolution Centre (DRC) of MIBCO.

Up until now, attorneys have not been allowed access to those arbitrations concerning the dismissal of employees for reasons of misconduct or incapacity (unless both parties had agreed to this and the commissioner had also consented).

Just recently, however, an arbitrator at the DRC has ruled that this restriction was wrong in law and that attorneys are entitled to assist their clients in presenting these type of claims at arbitration (Coetzee v Authohaus Centurion).

This means that, as a manager or business owner or HR representative, you might attend an arbitration hearing intent on defending your dismissal of an employee, only to find that your employee has enlisted the aid of a lawyer. With our labour laws being the complex minefield that they are, you are almost certainly going to be at a disadvantage going into that arbitration hearing.

And, as we know, losing a dismissal case at arbitration means either re-instatement of the employee (with full back pay) or payment of financial compensation to the employee (in the most extreme case, payment of 12 month’s salary).

Added to this, and litigation being the monetary battle that it often is, you might now even end up with a costs order against you, meaning that you will effectively be paying the fees that your employee owes his lawyer!

RMI members are therefore encouraged to continue to make use of our in-house IR Specialists in all matters regarding the discipline of employees and to do so at the earliest stage.

Our IR Specialists will guide and support you throughout your internal disciplinary process and any subsequent DRC dispute processes, and will strive to ensure that you get the best possible outcome from these situations.