The Rules for the Conduct of Proceedings before the CCMA (“the Rules”) govern the processes of the CCMA and accordingly apply to Bargaining Councils. As such, the issue of representation has been one of contention over the years. The CCMA is a more informal process than a Court and is generally geared toward resolving matters expeditiously rather than through drawn-out litigation. However, “litigation” is sometimes avoidable; thus, parties must attend arbitration to resolve matters. Based on the complexity of the matters, this process may require representatives to be present, who may not have an automatic right to represent their members/clients based on Rule 25 of the Rules.
Rule 25 deals with representation before the Commission. Primarily, the Rule limits the scope for who may represent a party at Conciliation proceedings. The representation is limited to: –
- (a) (1) to a director or employee of that party and if a close corporation also a member thereof;
- (a) (2) or any member, office-bearer or official of that party’s registered trade union or registered employer’s organisation.
In Arbitration proceedings, the party may be represented by a: legal practitioner; director to a party or employee of that party and if a close corporation also a member thereof; or any member, office-bearer or official of that party’s registered trade union or registered employer’s organisation. This subsection is limited by subsection (c), which states that a legal practitioner is not entitled to represent a party in proceedings related to the fairness of an employee’s conduct and capacity unless there is consent by the Commissioner and employer and that, based on the below factors, the Commissioner concludes that it is unreasonable to expect an employee to deal with the dispute without legal representation. These factors include:-
- the nature of the questions of law raised by the dispute;
- the complexity of the dispute;
- the public interest; and
- the comparative ability of the opposing parties or their representatives to deal with the dispute.
The Commissioner thus has the discretion to allow legal representation based on the above factors. The Rule has come under scrutiny and legal challenge as, firstly, legal representatives will need to apply to represent a client. Secondly, there is no discussion as to whether an Advice Officer is allowed an automatic right to represent a member. In the matter of CWAO & Others v CCMA & Others (J645/16), the challenge was that Rule 25 is prejudiced as it did not allow advice officers to represent applicants. The Labour Court in Johannesburg thus allowed for the discretion by the Commissioner, as mentioned above, to be considered on those factors set out in Rule 25 before allowing for representation.
In Ntsede v Kiewitsvlei Boerdery (Pty) Ltd  6 BALR 619 (CCMA) the issue of Representation was dealt with. The Applicant was a general worker who was dismissed for returning to work while infected with the COVID-19 virus. The Applicant was represented by the General Secretary of the Southern Cape Community Forum (“SOCACOF”). An application for representation was brought, and there was no objection from the other party in relation to the representation. It is to be noted that a community forum is not recognised in terms of Rule 25. The Commissioner considered the submissions placed before him, which included the following factors: –
- The Applicant had a medical condition in that she had limited hearing ability – the Respondent confirmed this;
- The Applicant did not belong to a trade union, and there was no trade union involvement in the workplace;
- She could not afford legal representation.
The Commissioner granted the application as he felt it would be in the interests of justice to allow the representation based on the Applicant’s limited ability to hear. This factor counted as an exceptional circumstance. He further considered that Applicant did not belong to a trade union and the unaffordability of a legal representative. The Commissioner stated that allowing a representative would assist in expediting the matter. The Respondent raised no prejudice, and thus the Commissioner granted representation.
The Rule has been challenged not only by advice officers but legal representatives alike. To date, there has been no Constitutional ruling as to the legality of the limitation on representation as set out in Rule 25. In conclusion, there remains a discretion on the Commissioner, in relation to legal representatives and advice officers in certain cases, considering the factors listed in Rule 25 (1)(c), to decide whether representation should be allowed.
Article by: Lauren Moodaley
Dispute Resolution Official – CEO Cape Town