Daily Dispatch

CCMA: is legal representa­tion always allowed?

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TO THE layman, it seems natural that in all legal matters – where it is necessary to approach a court or legal body such as the Commission for Conciliati­on, Mediation and Arbitratio­n (CCMA) – having a legal representa­tive stand up for one is an inalienabl­e right. However, in the CCMA this is not always the case.

In the case of Carter / Marble Classic Exclusive Warehouse for Natural Stones (Pty) Ltd – (2018) 27 CCMA 1.8.1 also reported at [2017] 1 BALR 32 (CCMA):

The employee was dismissed by the respondent for alleged misconduct.

A dispute was referred to the CCMA for conciliati­on and then arbitratio­n.

Both parties were accompanie­d to the arbitratio­n by attorneys, who informed the Commission­er that the parties had agreed to legal representa­tion.

The commission­er pointed out that he had to exercise an independen­t decision in that regard and invited the attorneys to make submission­s about why legal representa­tion should be allowed.

The commission­er noted the CCMA rules stipulate that in arbitratio­ns about the fairness of dismissals concerning employees’ conduct or capacity, parties were entitled to be represente­d by legal practition­ers only if the Commission­er and all other parties consent or if the Commission­er finds it would be unreasonab­le to expect a party to deal with the dispute without legal representa­tion.

Legal representa­tion is, in principle, not allowed in matters involving dismissals for misconduct. Even if the parties agree, Commission­ers must independen­tly apply their minds to see if legal representa­tion should be allowed.

In this case, the Commission­er concluded that the parties had not been addressed on the questions of law at issue.

The request for legal representa­tion was refused.

In case of misconduct and incapacity before the CCMA you have not got an automatic right to a legal representa­tive.

You have to make applicatio­n for such.

Jonathan Goldberg – CEO of Global Business Solutions. In this weekly column, labour lawyer Goldberg looks at various aspects of labour law. Readers can e-mail questions to news@dispatch.co.za.

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