To accompany, assist vs to represent

Many companies, whether unionised or not, are often faced with the question of whether their employees can be accompanied by a representative at a disciplinary hearing, and under what circumstances such requests for representation may be denied or curtailed.

More specifically, and as recently as two weeks ago, I had cause to assist a very good client who found herself confronted by not one but two attorneys-at-law representing an employee at an internal disciplinary hearing.

Over the years, the Industrial Court has provided detailed guidance to employers with respect to disciplinary procedures. In TD 116 of 1996, Oilfields Workers’ Trade Union v Petroleum Company of TT Ltd, the court advised that an employer dealing with an employee in a disciplinary situation has clearly defined duties.

The company must clearly state to the employee what he/she has done wrong and must give the employee a reasonable opportunity to explain him/herself or to demonstrate any required improvement, where possible. When the company has received that explanation, it should be considered fairly to arrive at a reasonable (as opposed to perverse) conclusion.

The court went on to say: “There was no duty by an employer to run his business and deal with his employees as regards discipline as if it were holding a trial in a court of law. Its conduct of disciplinary matters and its conclusions therein must be fair and reasonable in the ordinary sense of the words. This frees the employer from the burden of having to conduct a ‘mini trial.’”

With that said, the court has even gone on to advise on the various considerations that would affect an employer’s decision-making when undertaking disciplinary action that may result in dismissal.

These considerations include holding a proper, fair and reasonable investigation and disciplinary hearing, having a valid reason for termination if that is the identified course of action, advising the employee of the reason for termination and providing him/her with the opportunity to respond to any allegations levied against him/her (Trade Dispute 2 of 2001 Banking, Insurance and General Workers' Union v Hindu Credit Union Co-operative Society Ltd).

The overarching objective should be fairness and adherence to good industrial relations principles and practices.

In the UK, the Employment Appeal Tribunal (EAT) has ruled that the employee should be permitted the right to be represented or accompanied in accordance with “the procedure” (Rank Xero A(UK) Ltd V Goodchild (1979) IRLR 185, EAT).

The procedure was further codified into the English jurisprudence in the Employment Relations Act 1999 as a statutory right to be accompanied. The act sets out the right for a worker to be accompanied, when invited by his employer to attend a disciplinary or grievance hearing, by a companion who can be either an official of a trade union or another of the employer’s workers.

Further, an examination of Recommendation 166, from the International Labour Organisation Convention 158, Termination of Employment, sets out that a worker is entitled to be assisted by another person when defending himself at any internal disciplinary hearing called by his employer.

Therefore, In accordance with Article 7 of that convention, where allegations are made against an employee regarding his conduct or performance, and these allegations are liable to result in the termination of his employment, he has the right to be heard and also to be accompanied at the hearing to assist him with the presentation of his defence.

Now, if we carefully examine the language used in the English statutory scheme, the ILO Convention and supporting recommendations, it is clear that the considerations do not contemplate that the employee is entitled to be represented consistent with the standards in a court of law. The application of the principles of natural justice in this sense is restricted to providing the employee with a fair opportunity to defend against the allegations. It is this fair opportunity that includes the right to be accompanied and have assistance in presenting a defence.

With respect to the right to be accompanied to a disciplinary hearing, our own Industrial Relations Act Chapter 88:01 makes no mention of this. However, the Industrial Court has adopted the position of the English courts and their jurisprudence, as set out above, which establishes the worker’s right to be accompanied or represented at a disciplinary hearing.

When this right to be accompanied is analysed further, it must be done in accordance with “the procedure,” Where the said procedure expressly restricts the right to be accompanied to the presence of a trade union official or another employee, and expressly omits representation by an attorney-at-law, then this is enforceable by the employer.

Hence the jurisprudence and common sense clearly indicate that an employee who is required to attend a disciplinary hearing under normal circumstances has no absolute right to be represented by an attorney-at-law. In exceptional cases. and only in circumstances where the hearing might lead to civil or criminal charges. can such a right possibly exist.

Further, our own Industrial Relations Act, under Section 51, specifies clearly that only a trade union can report the existence of a trade dispute. An attorney-at-law therefore has no expressed standing, and therefore his or her presence at an internal disciplinary hearing is entirely at the discretion of the employer’s policy.

As an internal process, the conduct of disciplinary hearings can be managed in accordance with the company’s procedures, so long as the rules of natural justice are followed.

So while an employee has the right to be accompanied, the company can set limits as to who can accompany the employee to a disciplinary hearing.