LABOUR MATTERS
What are your rights at CCMA
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.