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It’s been a long-standing principle of dispute resolution at the CCMA and Bargaining Councils, based on the CCMA Rules, that legal representation of any party is never allowed at conciliation or at arbitrations of unfair dismissal disputes, where the dismissal was for misconduct or incapacity, most often poor work performance.

A commissioner sitting in the Metal and Engineering Industry Bargaining Council (MEIBC)  has upset the proverbial apple cart by ruling, in an application for legal representation based on Section 25 of the Legal Practice Act, 28 of 1914, that parties are allowed legal representation as a matter of right in any matter adjudicated by the MEIBC, and, by extension, any other formal labour law dispute resolution tribunal.  (Coetzee v Autohaus Centurion)

There is no blanket denial of legal representation at the CCMA, other than at conciliation. The anomaly regarding legal representation lies in the Rule that it’s allowed in disputes arising from operational requirement dismissals, constructive dismissals, and unfair labour practice disputes, as well as all kinds of preliminary applications regarding jurisdiction and for applications for rescission or condonation for late referral of disputes.

This single MEIBC ruling does not change the practice much because there is no rule or principle of binding precedent for CCMA or Bargaining Council Rulings. Commissioners aren’t legally bound by the Rulings of other commissioners though they may take guidance from other Rulings, and the CCMA seeks to implement a uniform viewpoint of how disputes are to be adjudicated and ruled on.

It’s always been open to any party to apply to be allowed legal representation at an arbitration in a misconduct or incapacity dispute. The usual grounds for such an application are that the matter is either legally or factually complex, or that it would be in the interests of justice to allow representation, and often the very pragmatic point that the other party, usually the employer party, is represented by an employee who is an in-house lawyer and that to refuse the employee party legal representation would allow an unfair inequality between the parties’ respective ability to present their cases.

In a sense, therefore, there is simply a new ground for an application for legal representation, albeit that this ground would also cover representation at conciliation and not only at arbitration.

The CCMA’s stance, as seen from its Directive 1 of January 2019, is that its Rules remain paramount because they’re underpinned by the Labour Relations Act, which overrules any other Act, and that legal representation is still not allowed at conciliation, and at the arbitration of disputes arising from misconduct or incapacity dismissals.

The argument raised at the MEIBC is that the Legal Practice Act gives legal representatives the statutory right to appear before any board, tribunal or similar institution, and that this would mean the CCMA or any Bargaining Council. The argument states further that the LRA merely empowers and authorises the CCMA to make Rules, which aren’t statutes, and does not itself rule on, or prohibit, legal representation. For this reason, a statute which does allow legal representation across the board, overrules a mere CCMA Rule without the status or protection of being entrenched in a statute.

This argument apparently cuts no ice with the CCMA.

Until the argument raised at the MEIBC  is definitively ruled on and determined by the Labour Court or the Constitutional Court, legal practitioners may still face an uphill battle to convince commissioners (at the CCMA and Bargaining Councils) to grant them representation  based on Section 25 of the Legal Practice Act alone and it would be prudent to raise this point as one more argument in the application, along with the usual grounds of legal or factual complexity, rather than as a standalone argument, until the  issue has been decided one way or another by a Court.

Neels van Rooyen
Labour Law Consultant
Hayes Incorporated

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