18 Oct 2012

Employment & Pension Law Newsletter - Bar on lawyers in CCMA may be lifted

Practice Area(s): Employment |

A recent judgment could mean that attorneys will be allowed to represent parties at the CCMA in all unfair dismissal disputes. Currently, the CCMA Rules provide that in cases of misconduct and incapacity, parties are not entitled to be represented by legal practitioners.   

There are two exceptions to this prohibition, firstly all the parties and the commissioner may consent to legal representation or secondly, the commissioner may make a ruling that it would be unreasonable for a party to deal with the matter without legal representation. In making this determination, the commissioner must have regard to the following factors:

  • The nature of the questions of law raised by the dispute;
  • The complexity of the dispute;
  • The public interest;

The comparative ability of the opposing parties or their representatives to deal with the dispute.
About 80% of disputes referred to the CCMA are framed as dismissals relating to the employee's conduct. This means that in the vast majority of arbitrations, parties are disallowed from using attorneys.                                                                                        

The Law Society of the Northern Provinces[1] brought an application in the High Court to have the rule relating to legal representation in cases of misconduct and incapacity disputes, Rule 26(1)(c), declared unconstitutional. The CCMA opposed the application.

The Law Society argued that there appears to be "no reasonable or constitutional rationale why only practising legal practitioners have a qualified right to appear in dismissals involving conduct or capacity."

The CCMA argued that lawyers often complicate matters which lead to delays. The overriding duty of the CCMA is to deal with disputes fairly and swiftly, with as few legal formalities as possible.

The Judge pointed out that "in the vast majority of cases, lawyers contribute to the efficient and speedy resolution of disputes by agreeing matters which are not genuinely in dispute and limiting evidence, cross examination and argument to that which is necessary for the adjudication of the case." 

The Judge stated that, "I cannot agree that the dismissal of an employee is never a serious matter for the employee." He then quoted the landmark judgment of Sidumo[2] in which it was held that employees are entitled to assert their rights and the state is obliged to provide the means to ensure that constitutional and labour law rights are protected.

The Court held that the limitation of the right to legal representation in the CCMA is arbitrary and so not justifiable. Accordingly, Rule 25(1)(c) of the Rules for the Conduct of Proceedings Before the CCMA was declared unconstitutional. However, the parties agreed that the declaration should be suspended for 36 months to allow the CCMA to formulate a new rule.

Whilst Rule 25(1)(c) will remain in place for the next 3 years, it is anticipated that CCMA commissioners may be more inclined to allow legal representation in arbitrations involving claims of misconduct and incapacity. Faced with a judgment that Rule 25(1)(c) is unconstitutional, commissioners may be more easily persuaded to grant an application for legal representation.

Kate Staude, Associate Partner

Contact: 031 575 7211 and kstaude@wylie.co.za

[1] The Law Society of the Northern Provinces v Minister of Labour & others (Case no. 61197/11) dated 11/10/12

[2] Sidumo v Rustenburg Platinum Mines Limited and Others (2007) 28 ILJ 2405 (CC)