CCMA Representation

Changes in the Rules for Conduct Related to CCMA Representation

Other than at an arbitration hearing, legal representation for the employee was not legal in the past in terms of Rule 25 of the Rules for Conduct for the Proceedings before the CCMA. However, amendments to the Rule have been made and now the rules for CCMA representation have been stated for employees, employers, unions, and employer organisations separately.

Accordingly, CCMA representation by an official member of a trade union or an office bearer is allowed where the party represented is a registered member of the particular trade union. Keep in mind that the representatives for the party must have been authorised by the registered union.

The Rule also states that CCMA representation by an official, director, office bearer or employee of an employer who is a registered member of an employer organisation is allowed for the employer organisation, subject to certain conditions.

CCMA representation by a lawyer at arbitration is allowed for the employee, subject to specific conditions. However, according to the new Rules for Conduct for the Proceedings before the CCMA, it is not permissible for any person who is not a legal practitioner to charge a fee or receive monetary benefit for CCMA representation of a party. It does, however, mean that an employee can, in the instance of arbitration, get legal CCMA representation and the lawyer can charge a fee for such.

The new Rules provide the commissioner the right to exclude the right of the member of an employer’s organisation to represent another party that is the member of the same organisation. If the commissioner has reason to believe that the person joined the organisation with the specific purpose of representing the employer at the proceedings, the commissioner can exclude the member’s right to act as a representative. The amendment thus helps to prevent unfair advantage to a party where a labour consultant joins the employer organisation for the purpose of representing the employer in a dispute other than an arbitration hearing.

CCMA representation by a legal practitioner at conciliation proceedings is still not allowed, but in terms of arbitration proceedings, a party can have a legal practitioner to represent them. Keep in mind that such legal representation at the CCMA arbitration proceedings is restricted if the dispute to be resolved is about dismissal fairness and where such dismissal is about the employee’s capacity or conduct.

The above being said, the representation by a legal practitioner at the CCMA arbitration proceedings in the above instances is not completely restricted.

Should the commissioner deem that it would be unreasonable for the party to not have legal representation at the proceedings with consideration of all the factors, including the nature and complexity of the particular dispute and whether it would be in the best interest of the public, then such CCMA representation can be allowed. This can also be the case where the commissioner deems that the party would be unfairly disadvantaged because of the opposing party’s ability to deal with a particular dispute should the party who requires legal representation have to argue against the opposing party without such representation.

Apart from the amendment regarding CCMA representation, it is worth noting that, according to Rule 31, any party that wants to bring an application regarding issues such as postponement, rescission, and more, must submit the application 14 days before the hearing date. The answering affidavits must be served within a period of five days after the application has been received. The replying affidavit must be served within a period of three days from date of opposition and serving of the answering affidavit.

Rule 36 has been changed to stipulate that legal notes must be made and kept where possible, but there must also be a digital recording of the proceedings. The new Rules include Rule 37A related specifically to expert witnesses. Accordingly, a party that wants to bring in an expert witness must provide the other party to the CCMA hearing with notice to the intention to do so at least seven days before the CCMA hearing. The notice must be accompanied by a summary of the evidence to be given by the expert witness. With the rule in place, the other party can get time to go through the summary and this also minimises the need to postpone the hearing in order to review the expert witness evidence before the hearing.

Call on our attorneys on (011) 234 2125 for more information about the right to legal representation at the CCMA and assistance in resolving disputes, whether you are an employer or employee.

 

 


 

NB: This article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information. Information is relevant to the date of publishing – September 2017.

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