Representation at Conciliation and Arbitration and the associated difficulties

Once a matter has been referred to the CCMA (or Bargaining Council), the next step is for the Conciliation to take place. Remember from our previous article, a matter can be referred and later set down as a Conciliation-Arbitration alternatively if opposed by the Applicant (Employee) or the Respondent (Employer), the matter will be set down for Conciliation only.

At the CCMA it is not a given that the Applicant be allowed legal representation at Conciliation, unless there is a point in limine to argue, then a legal representative is allowed. A legal point for example, would be the jurisdiction of the Commission to be allowed to hear the matter or not. In the event that the Respondent agrees, then the Applicant can be assisted by his/her attorney at Conciliation to try and assist the parties to settle the matter, as this is the sole purpose of this process.

Another example of a point in limine would be if the Applicant had to apply for Condonation for the late filing of his/her Referral form after the 30 day period. An attorney is allowed to argue this process on behalf of the Client as the Applicant, in light of the fact that a lay person is not expected to know how to argue a legal point/s.

In the event that the parties do not agree to legal representation, then the attorney is excused and allowed to remain outside the room where Conciliation is taking place. The Client is allowed to excuse them self from the room at any time and speak to his/her attorney for advice based on what is being discussed inside.

Attorneys are often seen as a nuisance during this without prejudice process, but it is never a ‘waste of money’ for a Client to take an attorney with to their Conciliation as the ability to get quick legal advice is much easier that way, than to try and phone the attorney every time the Client has a concern as the Attorney may not always be available to take the Client’s call. It is also very advisable to have your attorney present at the CCMA as unexpected points in limine could be raised by the Respondent and which your attorney would be present and allowed in to argue. It can also end up costing the Client more to do the latter. The fact that it is without prejudice means that neither party can use anything that was said at Conciliation during the Arbitration. Note that although the Conciliation process is not recorded, all points in limine must be recorded by the Commissioner hearing such point/s.

For Arbitrations, it is slightly different. Attorneys are allowed to represent a Client however they may need to apply to the Commission to do so. The Attorney is best equipped to argue the matter and to cross examine witnesses, however the CCMA tries to keep the processes as simply as possible. Rule 25 of the CCMA Rules deals with legal representation.

The CCMA website explains Rule 25 as follows:

Rule 25 of the CCMA Rules provides that in an arbitration hearing a party may appear in person or be represented by a legal practitioner, a director or fellow employee, office- bearer or official of the party’s registered trade union or registered employer’s organisation. However, if the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee’s conduct or capacity, legal representation is not automatic. Legal practitioners are only allowed in the proceedings unless:
The commissioner and all other parties consent; or
The commissioner concludes that it is unreasonable to expect a party to deal with the dispute without a legal representative.
In other words, the Rule explains that in matters related to misconduct or capacity, legal representation is not automatically allowed; however an Attorney is allowed to make application to do so by preparing a Notice together with an affidavit explaining why it is important for his/her Client to have legal representation at the Arbitration. Another way to do so, would be for the Attorney to apply in person on the day of the Arbitration before the proceedings commence.

Commissioners need to always consider the following:

1.​ The nature of the questions of law raised by the dispute: This refers to whether the matter, when looked at overall, was procedurally and substantively unfair.

2.​ The complexity of the matter: Often witnesses need to be called during the Arbitration process so as to strengthen the Applicant’s or Respondent’s case, respectively. Although procedure is important it is often the reason given by the Chairperson for the dismissal that determines complexity. For example, being dismissed for excessive absenteeism is not nearly as serious as for dishonesty.

3.​ The public interest: The Constitution provides for legal representation in the Bill of Rights and so Commissioners do not usually refuse legal representation easily. Although the Constitution affords a person such right, this does not mean that same is automatically allowed.

4.​ The comparative ability of the Applicant and the Respondent: The Commissioner when deciding whether to grant a party legal representation or not, will always weigh up the ability of the Applicant and the Respondent to deal with their cases in an appropriate manner. If the Commissioner feels that the Applicant and/or the Respondent will not be able to deal with his or her case suitably, such Commissioner will rule that legal representation is allowed.

The remedy in the event that legal representation is refused by a Commissioner would be for the aggrieved party to take the Commissioner’s formal Ruling on Review, to the Labour Court.

Legal representation will be automatically allowed if the parties both agree to same, subject to the Commissioner’s consent and as such, no formal application needs to be made.