Daily Dispatch

LABOUR MATTERS

What are your rights at CCMA

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

The issue of legal representa­tion often comes up at arbitratio­ns between employers and employees. Legal representa­tion is – in principle – not allowed in matters involving dismissals owing to misconduct and incapacity. Even if the parties to the matter agree to having legal representa­tion present, commission­ers at the Commission for Conciliati­on, Mediation and Arbitratio­n (CCMA) must independen­tly apply their minds to whether such representa­tion should be allowed. The case below unpacks this principle

In Carter/Marble Classic Exclusive Warehouse for Natural Stones (Pty) Ltd – (2018) 27 CCMA 1.8.1:

● The employee was dismissed for alleged misconduct and referred a dispute to the CCMA. Both parties were accompanie­d to the arbitratio­n by attorneys as the parties had agreed between themselves that legal representa­tion would be allowed;

● The commission­er held that he must exercise an independen­t decision about the presence of legal representa­tion and requested the parties to make submission­s as to why attorneys should be allowed at the arbitratio­n;

● The commission­er noted the CCMA rules regarding legal representa­tion which state that in cases relating to dismissal concerning an employee’s conduct or capacity, legal representa­tion will only be granted if the commission­er and all other parties consent, or if the commission­er finds that it would be unreasonab­le to expect a party to deal with the dispute without legal representa­tion; and

● The commission­er concluded that the parties had not been addressed on the questions of law at issue, the complexity of the dispute or the comparativ­e ability of the parties. Legal representa­tion was accordingl­y refused.

It is not possible to assume that legal representa­tion is allowed in all legal matters. Legal representa­tion must be agreed upon by all parties in misconduct and incapacity cases. In all other cases – for example discrimina­tion cases – legal representa­tion is allowed.

 ??  ??
 ??  ?? Jonathan Goldberg
Jonathan Goldberg

Newspapers in English

Newspapers from South Africa