In its decision, the SCA reviewed the High Court`s decision, highlighting the fact that dismissal disputes account for more than 80% of all CCMA cases and that a large majority of these disputes involve dismissals for misconduct and incompetence. With respect to these statistics, the FCC disagreed with the High Court`s conclusion that in most cases, lawyers contribute to the efficient and expeditious resolution of disputes. The FCC also reiterated that the CCMA is not a court and, as such, parties appearing before a forum other than a court do not have an automatic right to legal representation. While there is no automatic right to legal representation, FCC considers Rule 25(1)(c) to be sufficiently flexible to allow for legal representation in meritorious cases. The FCC also criticized the Law Society`s argument that the CCMA rule discriminates against legal practitioners. In this context, the FCC found that the Law Society had not established that the alleged discrimination violated a person`s dignity. In addition, the FCC noted that the Law Society had not provided evidence to suggest that Rule 25(1)(c) imposed difficulties on parties in CCMA arbitrations, nor had it referred to a case in which legal representation at the CCMA had been denied, thereby putting a party at a disadvantage. While the FCC`s decision appears to be well-founded, it will be interesting to see if the Bar turns to the Constitutional Court to remedy the situation. If this is the case, we will keep our customers informed.
Legal representation is not automatically allowed in cases of infringement and legal incapacity. A lawyer who wishes to represent his client at the CCMA must apply to the Commission to represent his client. Rule 25 of the CCMA generally applies during arbitration and not only confirms the right to be represented by counsel, but also limits this right if the dispute concerns the fairness of a dismissal and if a party claims that the dismissal concerns the conduct or capacity of the employee. In the event of any other type of dismissal or dispute, legal representation is automatically permitted. However, legal representation before the CCMA is not permitted during the conciliation procedure. The second hypothesis was that the presence of lawyers somehow complicates matters and creates the legal formalities that commissioners must avoid. Given that the AHR Act grants lawyers and counsel (including candidates) the right to appear before any court (this right is confirmed in sections 25(2) and (5) of the PCPA), the Commissioner found that the rules of the CCMA and collective bargaining boards, which give members the discretion to refuse legal representation in cases, in the case of dismissals for misconduct or incompetence, no longer apply. He therefore undertook to allow both parties to represent lawyers. (a) it is unreasonable to expect the requesting Party to resolve the dispute without representation after considering the factors referred to in paragraph 1(c)(ii)(a) to (d); In Netherburn Engineering CC t v a Netherburn Ceramics v Mudau and Others  10 BLLR 1034 (LC), the employer was prejudiced because the Commissioner refused to grant her lawyer the right to appear and, after the employer left, decided that the employee`s dismissal was unjust and reinstated her in arrears. When the case was brought before the Labour Court, Article 140 § 1 had already been repealed and replaced by Rule 25 of the then CCMA Rules. In any event, and despite the fact that parties to arbitration proceedings may request that the CCMA be represented by counsel, there has long been dissatisfaction with the general restriction on a party`s right to rely on legal representation.
The Court ordered that the annulment of Rule 25(1)(c) be suspended for 36 months so that the CCMA could review and issue a new rule. This decision is a reasonable approach in order not to invalidate Rule 25(1)(c) without replacement, which could result in administrative difficulties for the CCMA. However, it remains to be seen what amendments to Article 25(1)(c) will be and whether these amendments will prove useful in terms of the rights of the parties with regard to the Constitution and the PAJA. [See John Grogan – No Obfuscation, Please Legal Representation in the CCMAâ Employment Law Journal (LexisNexis) 2013]. 4. Comparability of applicant and respondent: When a member compares the ability of the applicant and respondent to deal adequately with their case. If the member is of the opinion that the plaintiff or defendant will not be able to deal with the case adequately, he or she decides that legal representation is permitted. In a recent article published by ENSafrica “A new decision could deprive the Commissioner of the discretion to deny legal representation in CCMA and Negotiating Council arbitrations”, the author announced: “A recent landmark decision by the South African Industries Negotiating Council could deprive the Commissioners of the Conciliation Commission, of mediation and arbitration (CCMA) of their discretion when it comes to disputes of wrongful dismissal for misconduct or incompetence. The employee, on the other hand, has the right to be represented by a formally registered union in conciliation and arbitration proceedings, provided that the union proves to the Commissioner (in writing) that the employee is a member of the union. It is very important to ensure that legal representation at the CCMA is registered. The Commissioner will always decide on paper whether he or she concludes that legal representation is not permitted. It follows that lawyers and trainee lawyers are also automatically excluded from arbitration proceedings concerning compliance orders concerning the BCEA and NMWA. While CCMA Rule 25(1)(c) permits legal representation during arbitration, it contains significant limitations on this right.
If the applicant and the defendant agree that one of the parties may have a legal request, the Commission will not reject it. However, the court accepted that representation in cases of misconduct and incapacity for work was still governed by Article 140(1) and considered Netherburn`s argument that it was unconstitutional. The Commissioner therefore has independent discretion to exclude legal representation in such hearings, even if the parties agree, or to authorize them if the parties disagree. This stems from the fact that the commissioner should have overall control over the process. The drafters of the Industrial Relations Act No. 66 of 1995 should create a settlement procedure free from the technical details that sometimes burdened disputes before the former Labour Court. To this end, they set up the Conciliation, Mediation and Arbitration Commission and explicitly instructed the Commissioners to conduct arbitration proceedings “with a minimum of legal formalities” (Article 138(1)). But the authors went even further. They provided, in section 140(1) of the LRA, that “legal practitioners” (i.e. lawyers and lawyers) could only represent the parties in disputes concerning dismissals relating to the conduct or status of employees if the Commissioner and all the other parties consented or, if one of the parties objected, if the Commissioner so decides, given the nature of the legal issues raised by the dispute and its complexity. the public interest and comparable ability of the opposing parties to conduct the arbitration themselves. In light of the above changes and the case law cited above, the Commissioner should, after using common sense on a request for representation, have full discretion as to the group of persons to be admitted during the arbitration.
The amended rules maintained restrictions on the activities of legal representatives. However, it clarifies how a request for legal representation should be made, as long as it is in the interests of justice. According to Van Eck, p. 723, the right to be legally represented has now been explicitly excluded to facilitate large-scale reductions, as provided for in section 189A(3) LRA.