Good day everyone, and welcome to another discussion in our "What if" series, where we bring you insights in the format of a what if question on the ever-evolving landscape of employment law.
I am Ross Simon from Maserumule Corporate Employment Law, and in today's discussion we will be unpacking an interesting case — one that demonstrates how the specific wording of your employment contract dictates the boundaries of disciplinary proceedings.
To kick start this discussion, let us pose the question:
What if an employee objects to the appointment of an external chairperson and / or initiator — what are the legal considerations and implications?
The answer is found in the recent
Labour Court judgment of the National Union of Metalworkers of South Africa and Denel
The Nature of the Application
This matter arrived at the Labour Court as an urgent application for final relief. The employees, represented by NUMSA, sought to interdict their disciplinary hearing from proceeding. Their primary argument was that the appointment of an external chairperson and an external initiator constituted a breach of their employment contracts.
Background and Facts
The employees, employed by Denel as Category Specialists, were suspended in March 2025. In November 2025, they were notified that their disciplinary hearing would be initiated and chaired by external legal professionals.
NUMSA challenged this, arguing that the company’s Disciplinary Code which was expressly incorporated into the employees' contracts of service did not provide for or authorize the use of external parties.
The Core Issue: A Clear Right?
To understand the limits of these disciplinary codes, the Court looked to the landmark case of Denel v Vorster. This established that when a disciplinary code is part of a contract, it acts as a legally binding "map". If the code dictates a specific route for discipline, the employer must follow it and cannot unilaterally change it.
However, the Court clarified that the employer is only bound by what is actually on that map; they are not restricted by things the code is simply silent on.
In this case, the Court found:
- There was no provision in the Disciplinary Code that specifically prevented an external chairperson or initiator from being appointed.
- Since the contract did not forbid an external chairperson or initiator from being appointed, the appointment was not a breach.
And
- The fact that employees are restricted to internal representation does not mean the employer is restricted from using external professionals to present its case.
- It is also important to distinguish between different kinds of external representatives. Where the employer appoints an external legal practitioner to act as initiator or representative, that practitioner would, in a CCMA dispute about misconduct or incapacity, ordinarily have to bring a formal application to appear, and by analogy, fairness considerations in internal hearings strongly suggest that the employee should then be afforded the same opportunity to be represented by a legal practitioner. By contrast, where the employer uses an external person who is not a legal practitioner, but is simply an experienced HR or labour relations specialist, the same CCMA‑style application for legal representation would not be triggered in the same way, although the overall fairness and balance of the process would still need to be considered.
Before we turn to the key takeaways, remember that this judgment deals with an internal disciplinary process and a contractual challenge, and our comments on legal representation draw on CCMA rules and case law by way of guidance rather than as a rigid template.
Key Takeaways
What does this mean for the workplace?
- If a Disciplinary Code is incorporated into a contract, the employer must follow the specific procedures laid out there.
- If a policy is silent on whether a chairperson must be external or internal, the employer generally has the discretion to appoint an external professional.
- If employees feel there is an imbalance because the employer uses an external legal practitioner as initiator, they may apply to the chairperson for permission to have legal representation as well; an application of this kind is consistent with the approach taken in CCMA misconduct/incapacity disputes, where legal practitioners need leave to appear, and in the interests of fairness an employer who insists on legal representation should be prepared to extend the same indulgence to the employee.
That brings us to the end of this week's discussion. Thank you for joining us. I hope you have found our discussion informative. If you have any questions or comments, we would love to hear from you. You can find us on social media or email me on ross@masconsulting.co.za. Until next time — good-bye.
View the case: Labour Court judgment of the National Union of Metalworkers of South Africa and Denel
