Use of advocate in disciplinary hearing
I have been served with a disciplinary charge by my employer and ordered to answer the charges in writing within seven days from the date of receipt of the charge. I would like to know what the procedure will look like and do I have the right to engage a lawyer to answer the charges on my behalf and represent me at the hearing? If I have the right to engage a lawyer, what will the role of the lawyer be during the hearing? Is there any time limit for commencing disciplinary hearing after the employee is served with a show cause notice and disciplinary charges? Does the law prescribe the time within which the disciplinary hearing proceedings should be concluded after commencement? Does the law provide a time limit within which the disciplinary hearing committee should submit its findings and report to the employer for decision? What if the employer disagrees with the disciplinary hearing, can the employer make a decision which is inconsistent with the findings and recommendations of the disciplinary hearing committee? Do I have the right to be provided with a copy of the hearing proceedings of the disciplinary committee? Please guide.
You have not said whether you are working in the public or private service sector, so we will give you the legal position in both. To start with the public service, the governing law is the Public Service Regulations, 2022 [GN No.444 published on 24 June, 2022]. Regulation 47 of the Public Service Regulations, 2022 gives the accused public servant the right to appear before a disciplinary hearing committee with an advocate or a co-employee or a trade union representative provided the co-employee or the trade union representative is not a witness in the case. We interpret the right to appear by an advocate before the disciplinary committee broadly to include the right to engage an advocate to respond to a show cause notice.
The Public Service Regulations gives an advocate representing the accused public servant before the disciplinary hearing committee the right of cross examining witnesses called by the employer to prove the guilt of the employee. In addition to the right to cross examine the witnesses, the advocate has the role of examining the documents tendered during the disciplinary hearing by the employer’s representative and can object to the reception of documents by the disciplinary committee. After conclusion of the employer’s evidence, the advocate has the right to call and examine his client and other witnesses on behalf of the accused client as well as asking the witnesses he is examining to produce relevant documents in the course of giving evidence in support of the accused employee. In short, the role of an advocate before the disciplinary hearing committee is the same as the role played by the advocates before the ordinary Courts of law.
The Public Service Regulations prescribes 60 days from the date the accused public servant was served with charges as the period within which the disciplinary hearing proceedings should commence. After the commencement, proceedings should be concluded within a period of 60 days from the date unless the extension for a period not exceeding 30 days is sought and obtained from the disciplinary authority. The period of 60 days for concluding the hearing proceedings is inclusive of the time within which the disciplinary committee should submit its findings and recommendations to the disciplinary authority or employer for decision. The disciplinary authority, after receipt of the findings and recommendations of the disciplinary committee, has to make its final determination and communicate the outcome to the accused employee within a period of thirty days from the date of receipt of the Committee’s report. The Public Service Regulations give the employee the right to be availed with the record of proceedings of the inquiry upon application.
We now address the private sector. The disciplinary procedure in the private service is solely governed by the Employment and Labour Relations (Code of Good Practice) Rules, 2007 herein referred to as the Code of Good Practice. Under paragraph 4(4) of the Guidelines for Disciplinary, Incapacity and Incompatibility Procedure which is a Schedule to the Code of Good Practice, an employee who is charged with a disciplinary offence is entitled to be represented by a trade union representative or a co-employee. The Code of Good Practice neither bars nor gives the accused employee the right to appear before the hearing committee with an advocate. Some companies allow the accused employees to appear before the disciplinary committee with an advocate on the basis of the Company’s HR Policy and not on the basis of the Code of Good of Practice. Some companies allow the advocate to appear before the disciplinary hearing committee on the basis of the legal principle that the employee’s right to be heard by the disciplinary committee includes the right to be represented by an advocate.
The Code of Good Practice only provides the period within which the outcome of the hearing should be communicated to the employee after conclusion of the hearing which is 5 working days. The law is silent regarding the time within which the hearing should commence after the employee is served with a show cause notice. What the Code of Good Practice clearly provides is the minimum period of the notice of hearing and states that the employee should be given a hearing notice of not less than 48 hours. The law does not provide the time frame for concluding the hearing after commencement. The Code of Good Practice is also silent on the employee’s right to be availed with the record of disciplinary hearing proceedings.
One thing which is common under both the Public Service Regulations and the Code of Good Conduct is that the employer is not bound by the findings and the recommendations of the disciplinary committee. The employer is entitled to differ with the committee though she/he should give reasons for his disagreement with the Committee.