CCMA: is legal representation always allowed?
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.