Outside of an arbitration hearing, the employee`s legal representation was not legal in the past within the meaning of Rule 25 of the Code of Conduct for Proceedings before the CCMA. However, changes have been made to the rule, and now the CCMA`s representation rules for employees, employers, unions and employers` organizations have been set separately. The CCMA is an institution that follows its own rules and guidelines. This means that the CCMA deals with various issues and is bound by the rules of the CCMA and the Industrial Relations Act. In some cases, legal representation by the CCMA is not permitted. To better understand this concept, it is important to know what legal representation is and what it is. It is always best to consult with a lawyer about legal representation at the CCMA as you move forward. A party wishing to participate in the CCMA must ensure that they are well informed of their case. Rule 25 specifies certain cases in which legal representation is not automatically permitted. This will be discussed briefly in order to better understand what Article 25 is. 3. The public interest: While we recognize that the CCMA should not be too legalistic in deciding whether or not to authorize a legal representative, the CCMA will always keep in mind that the Constitution provides for legal representation and does not frivolously reject legal representation. Law Society of the Northern Provinces v Minister of Labour and Others JS61197/11 provides guidance and shows that changes to the CCMA are to be expected.
This case, decided by the Supreme Court of Pretoria, concluded that Rule 25(1)(c) of the CCMA Rules is unconstitutional because the restrictions on legal representation imposed by the CCMA Rules cannot constitute an appropriate or justified restriction on the constitutional rights of the parties, in particular Article 33 of the Constitution, which provides for rights of equitable administrative action. If the Commissioner considers it inappropriate to deny a party legal representation in the proceedings after considering all factors, including the nature and complexity of the dispute and if it would be in the best public interest, such representation of the CCMA may be authorized. In conciliation proceedings, a lawyer is not allowed to represent his client. The reason for this is that both parties in the conciliation phase are trying to settle the dispute between them. The conciliation phase is not recorded and is completely unprejudiced. This means that a party cannot use what was said in the arbitration at a later date in the CCMA. In any event, and notwithstanding the fact that parties to arbitration may seek legal representation from the CCMA, there has long been dissatisfaction with the general restriction of a party`s right to invoke legal representation. The rule also states that representation of the CCMA by a civil servant, administrator, public official or employee of an employer who is a registered member of an employers` organization is permitted for the employers` organization under certain conditions. Rule 25 of the CCMA generally applies during arbitration and not only confirms the right to be represented by counsel, but also restricts this right if the dispute concerns the fairness of a dismissal and a party claims that the dismissal is related to the employee`s conduct or capacity. In any other type of dismissal or dispute, legal representation is automatically permitted. However, legal representation before the CCMA is not permitted during the conciliation procedure.
Our clients, who have previously employed lawyers, often wonder why lawyers cannot represent at the CCMA. This is due to Rule 25 of the CCMA Rules, which is found on the back of the Industrial Relations Act and states that only the above-mentioned persons automatically have a right of representation. If a lawyer wishes to represent his or her client in arbitration, the lawyer in question would have to file an application from Locus Standi, which roughly translates to « the right or ability to bring an action or appear in court. » With respect to the comparability of the opposing party or its representatives, the Commissioner will consider who is arguing against whom. If both parties have lawyers, the Commissioner may grant such a request, but if it is a lawyer representing the applicant and arguing against the Industrial Relations Manager or the Human Resources Manager, the Commissioner will be less inclined to allow the same thing. The Court also noted that the restrictions in section 25 of the CCMA Rules were inconsistent with the requirements of the Promotion of Administrative Justice Act 2000 (PAJA), with which section 33 of the Constitution was to enter into force. The court ruled that the restrictions resulting from Rule 25 were arbitrary and concluded that the CCMA should amend its rules to provide for a right of legal representation. Interestingly, the court did not go so far as to say that the CCMA should be completely unlimited with respect to the authorization of legal representation. In the context of a conciliation procedure, the employer may be represented by an employee or a director if the employer is an enterprise; A private company may be represented by one of its members.
In addition, a registered employers` association may represent the employer if he or she is a member of the organization. The Workers` Party may be represented either by itself or by its registered trade union. The new rules give the Commissioner the right to exclude the right of a member of an employers` organization to represent another party who is a member of the same organization. If the Commissioner has reason to believe that the person has joined the organization for the specific purpose of representing the employer in the proceedings, he or she may exclude the Member`s right to act as a representative. The amendment thus helps to avoid an unfair advantage for a party when an employment counsellor joins the employers` organization to represent the employer in a dispute other than arbitration. There is a clear concern that the right to be represented by legal representatives may limit the CCMA`s ability to operate within these parameters and unnecessarily complicate and prolong the proceedings […].