The CCMA is intended to be a forum in which labour disputes can be speedily and expeditiously decided with a minimum of legal formalities and procedure; there is a clear apprehension that the right to be represented by legal representatives will curtail the ability of the CCMA to operate within these parameters and will unnecessarily complicate and lengthen proceedings.
However, Rule 25 of the CCMA Rules governs the right to representation by a legal practitioner. This right is restricted if the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee’s conduct (misconduct) or capacity (ill-health / poor work performance).
This restriction can be relaxed if the commissioner and all the other parties consent, or if the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering relevant factors, such as:
(1) The nature of the questions of law raised by the dispute;
(2) The complexity of the dispute;
(3) The public interest; and
(4) The comparative ability of the opposing parties or their representatives to deal with the dispute.
Any party to the dispute can bring an application to the CCMA arguing that he / she should be allowed legal representation and would be required to motivate or justify why representation should be allowed on the grounds set out above.
In light of the disputes which have arisen about parties’ rights to be legally represented at all stages of CCMA proceedings, the recent case of Law Society of the Northern Provinces v Minister of Labour and Others JS61197/11, provides some guidance and shows that changes to the CCMA can be expected regarding this issue.
Until further notice, the status quo remains the same.
Article by: Anesta Kruger
CEO Dispute Resolution Official – Durban