As a general rule, litigants are entitled to legal representation at the commission for conciliation, mediation and arbitration ccma arbitrations unless the issue relates to an alleged unfair. Ccma rules noteworthy amendments made to the ccma rules. This applies in matters where both parties are represented by a trade union, an employers organisation, a legal practitioner andor a candidate attorney. The rules of the ccma that limit legal representation in disputes relating to dismissals for misconduct or incapacity which form the vast majority of disputes referred to the ccma are valid and not unconstitutional. Legal brief r december 2012 january 20 ule 25 of the current rules of the ccma provide a general rule that, in arbitration proceedings before the ccma, although a party to the dispute may appear in. However, rule 25 of the ccma rules governs the right to representation by a legal practitioner. In this matter, the applicant employee had applied to be legally represented at an arbitration. Ccma ordered to amend its rules to allow for legal representation. As the cwao pointed out in court papers, only 27% of employees are unionised and afforded avenues to representation by the ccma rules.
Right to legal representation in dismissal for misconduct and incapacity governed by rule 25 of the ccma rules. The commission for conciliation, mediation and arbitration ccma. The commission for conciliation, mediation and arbitration ccma is a dispute resolution body established in terms of the labour relations act, 66 of 1995 lra. This right is restricted 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 employees conduct misconduct or capacity illhealth poor work performance. The court, in this case, ruled that the restrictive provisions of section 25 are unconstitutional and suspended the declaration of invalidity for 36 months to allow the ccma to amend the provisions regarding representation.
Amended ccma rules have been published in the government gazette and take effect on march 1, 2020 and are repeated here in final form for easy reference. A recent landmark decision of the of the south african metal and engineering industries bargaining council could see commission for conciliation, mediation and arbitration ccma commissioners stripped of their discretion in granting legal representation. At present, the approach adopted by the commission for conciliation, mediation and arbitration ccma in regard to parties rights to legal representation is that there is no absolute right to legal representation at any stage of the proceedings. This conclusion does not mean that the rules of the ccma must provide for an unrestricted right to legal representation. Motshekga v commission for conciliation mediation and. A recent landmark decision of the south african metal and engineering industries bargaining council could see commission for conciliation, mediation and arbitration ccma commissioners stripped of their discretion in granting legal representation for those involved in unfair dismissal disputes arising from misconduct or incapacity. By following the new rules, the right to legal representation by a legal practitioner or candidate attorney in specific. Global business solutions a leading labour law human resource. Disciplinary hearings and the employees right to legal. Limits on legal representation at the ccma valid global. Your guide to labour law in south africa labour guide. It is wellknown that in terms of the rules for the conduct of proceedings before the ccma, a legal representative is not permitted to represent a party in disputes pertaining to dismissals for. The other party may then deliver an answering statement.
Until now, rule 25 of the rules for the conduct of proceedings in the. The ccma is an institution which follows its own rules and guidelines. On the contrary, both the common law as expressed in hamata, supra, and section 33a of paja confer a discretion on a commissioner in a ccma arbitration. Legal representation, the constitutionality dilemma. A notice of opposition and an answering affidavit must contain, with the changes required by the context, the information required by sub rules 3 and 4 respectively.
However, representation by a registered trade union or registered employers organisation is allowed. A shorter notice period will be allowed if the parties agree to a shorter period or if reasonable circumstances. Ccma rules precludes attorney representation in unfair dismissal. Buchner22 is of the view that the disadvantages of disallowing legal representation at certain stages of the ccma. However, in coetzee v autohaus centurion, mr coetzees attorney argued that the legal practice act, 2014 the lpa deprives commissioners of their discretion to refuse legal representation, whatever the rules of the bargaining council or the ccma might say.
In particular, legal representation is not permitted if a dispute concerns a dismissal where the reason for the dismissal is either misconduct or capacity. Rule 25 1 c of the ccma rules limits the right to legal representation at arbitrations. Rule 25 of the current rules of the ccma provide a general rule that, in arbitration proceedings before the ccma, although a party to the dispute may appear in person or be represented by a legal practitioner, the right to representation by a legal practitioner is restricted if the dispute being arbitrated is about the fairness of a dismissal. Decision may deprive commissioner discretion to refuse legal. According to rule 25 of the rules for the conduct of proceedings before the ccma, a legal representative is not permitted to represent a party at proceedings if the dispute concerns a dismissal which relates to misconduct or incapacity. It is an independent body, does not belong to and is not controlled by any political party, trade union or business. Ccma ordered to amend its rules to allow for legal representation the court also found that the restrictions in rule 25 of the ccma rules was inconsistent with requirements of the promotion of administrative justice act, 3 of 2000 paja, which. 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. Thus, unlike in all other arbitrations before the ccma, where litigants have an unrestricted right to be represented by a legal practitioner, in terms of r 251c, this right to legal representation is limited in matters relating to an employees conduct or capacity. Amendments to rule 11 in terms of the amended rule 11, the ccma must give the parties at least 7 days notice of a conciliation as opposed to 14 days in relation to strikes, lockouts and major retrenchments. Legal representation is not always guaranteed, but an employee may always bring an.
Sep 03, 2019 see pak le roux the right to legal representation at the ccma. Again, the commissioner should rule against legal representation. Nov 14, 2017 in terms of the ccma rules the right to legal representation in arbitration proceedings is restricted in instances where the dispute relates to the fairness of the dismissal and where the reason for the dismissal relates to the employees conduct or capacity. Home services ccma representation ccma hearings, 10 things to help you prepare while helping our clients with ccma hearings or avoiding them completely is an area we have great success with, it is advisable to have some knowledge of the rules and processes of this often misunderstood body. 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. Sep 22, 2017 ccma representation by a lawyer at arbitration is allowed for the employee, subject to specific conditions. Apr 16, 2020 the ccma may order you to file a statement of your case. The ccma will then contact you and the other party within 30 days of the referral and inform you of the date, time and venue of the first hearing, namely conciliation. Practitioners need to carefully peruse the new rule. This will be discussed briefly, to better understand what rule 25 is about. It ruled that the high court judge disregarded the considered judgment of the experts who first drafted the lra. On 5 june 2019 the director of the ccma issued a directive stating that the lpa has not changed the rights of legal representatives to appear in ccma. New ruling may remove a commissioners discretion to grant legal. Rule 25 of the ccma rules, as amended in 2019 the rules regulates the right to legal representation in the ccma.
It follows that a declaration of constitutional invalidity must issue. Rules for the conduct of proceedings before the ccma as. The purpose of this form this form is a request by a party to the ccma to secure agreement on picketing rules during a strike or lockout. Could the ccma see more legal representation in future. The cwao said the ccma s rules of representation create particular problems for labour broker and contract workers attempting to access new rights in the labour relations act lra. The court also found that the restrictions in rule 25 of the ccma rules was inconsistent with requirements of the promotion of administrative justice act, 3 of 2000 paja, which was intended to give effect to section 33 of the constitution.
The directive equates section 8 of the now repealed attorneys act 53 of. In certain instances, legal representation is not allowed by the ccma. If a party is represented by a registered trade union, its office bearer or official or member, the commissioner may request to see the authority of that union to represent the member. This case, decided in the pretoria high court, found that rule 251c of the ccma rules is unconstitutional, on the basis that the restrictions on legal representation imposed by the ccma rules could not amount to a reasonable or justifiable restriction on parties. 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 partys registered trade union or registered employers organisation. This right is restricted if the dispute being arbitrated is about. Constitutionalising the right legal representation at ccma arbitration proceedings. The statement of case must set out the main facts and legal issues related to these facts upon which you rely and must be delivered within the timeperiod specified by the commissioner. In terms of the ccma rules the right to legal representation in arbitration proceedings is restricted in instances where the dispute relates to the fairness of the dismissal and where the reason for the dismissal relates to the employees conduct or capacity. The cwao said the ccmas rules of representation create particular problems for labour broker and contract workers attempting to access new rights in the labour relations act lra. Ccma representation by a lawyer at arbitration is allowed for the employee, subject to specific conditions. Rule 25 stipulates the certain instances where legal representation is not automatically allowed.
Legal representation at the ccma a constitutional right. The ccma may approach the labour court to clarify the apparent conflict between the ccma rules and section 25 of the act. Rule 25 stipulates certain instances where legal representation is not automatically allowed. The commissioner has discretion to permit or refuse legal representation. There are not many changes and they are highlighted in this post note. New ruling may remove a commissioners discretion to grant legal representation at ccma. Ensafrica news new decision may deprive commissioner.
In the ccma s first directive for 2019, effective as at 23 march 2019, the ccma sought to clear the air in respect of the allegations of a conflict between the ccma rules and the legal. Rule 25 of the current rules of the ccma provide a general rule that, in arbitration proceedings before the ccma, although a party to the dispute. However, ccma rule 25 governs the right to representation by a legal practitioner. Rule 25 of the current rules of the ccma provide a general rule that, in arbitration proceedings before the ccma, although a party to the dispute may. The ccma, empowered by s1152ak of the labour relations act lra, enacted rule 25 in january which allows a party in an arbitration. Legal practitioners right of appearance at the ccma. This means, that the ccma deals with various matters and that they are bound by the rules of the ccma and labour relations act. Constitutionalising the right to legal representation at ccma. Mar 18, 2020 ccma ordered to amend its rules to allow for legal representation the court also found that the restrictions in rule 25 of the ccma rules was inconsistent with requirements of the promotion of administrative justice act, 3 of 2000 paja, which was intended to give effect to section 33 of the constitution. The court decided that the restrictions which arose from rule 25 were arbitrary and concluded that the ccma should amend its rules to provide for a right to legal representation.
Although parties do not have an automatic right to legal representation in these circumstances, rule 25 1 c allows a party to make a formal. The ccma is not rolling over on the issue of legal representation. Commissioner refusing the employee the right to legal representation. The complexity of the dispute will be determined by what is in dispute most disputes pending before the ccma deals with misconduct and more often than not the specific offences committed by the applicants are not very complex in nature. A registered trade union or employer fills in this form. Parties may not be represented by a legal representation at conciliation. According to the previous ccma rules, a party to a dispute could be represented by a legal practitioner or another party entitled to represent parties to a dispute, for example, a union representative. In this matter the court considered the constitutionality of the restriction on legal representation in terms of rule 252c of the rules of the ccma. Rules for the conduct of proceedings before the ccma w. The ccma may order you to file a statement of your case. See pak le roux the right to legal representation at the ccma. New ruling to remove discretion to grant legal representation. The ccma argued that the reason for limiting legal representation is not the gravity of the consequences of the dismissal for the employee, but the fact that these dismissals usually involve one employee and not a whole workforce. As a result, many nonunionised workers approach community advice offices such as the cwao for legal advice.
Its been a longstanding principle of dispute resolution at the ccma and bargaining councils, based on the ccma rules, that legal representation of any party is never allowed at conciliation or at arbitrations of unfair dismissal disputes, where the dismissal was for misconduct or incapacity, most often poor work performance. The ccma s stance, as seen from its directive 1 of january 2019, is that its rules remain paramount because theyre underpinned by the labour relations act, which overrules any other act, and that legal representation is still not allowed at conciliation, and at the arbitration of disputes arising from misconduct or incapacity dismissals. New ruling may remove a commissioners discretion to grant legal representation at ccma by cowan harper mazikizela attorneys according to rule 25. Mathole and others v governing body of the ccma and others. The north gauteng high court this week on monday 15 october ordered that the commission of conciliation, mediation and arbitration ccma should consider new rules that will not arbitrarily prohibit legal representation in misconduct or incapacity dismissal disputes.
New decision may deprive commissioner discretion to refuse. Until now, rule 25 of the rules for the conduct of proceedings in the commission for conciliation mediation and arbitration the ccma rules precludes attorney representation in unfair dismissal disputes arising from misconduct or incapacity, unless the commissioner and all other parties consent, or the commissioner concludes that it is. During the arbitration proceedings, attorneys will be allowed in certain circumstances. This discretion is reflected in the amended rule 35 of the ccma rules.
Dec, 2012 rule 25 of the current rules of the ccma provide a general rule that, in arbitration proceedings before the ccma, although a party to the dispute may appear in person or be represented by a legal practitioner, the right to representation by a legal practitioner is restricted if the dispute being arbitrated is about the fairness of a dismissal. Legal representation of the ccma is governed by rule 25 of the ccma rules. Law society of the northern provinces v minister of labour 20 1 sa 468 gnp january 2014 doi. High court upholds challenge to ccmas limitation on legal. Restriction on legal representation at the ccma the north gauteng high court recently heard the matter of law society of the northern provinces v minister of labour and others 611972011. Oct 11, 2016 this meant that nonunionised workers who did not have officials to represent them and could not afford legal fees did not have access to arbitration at the ccma as the cwao pointed out in court papers, only 27% of employees are unionised and afforded avenues to representation by the ccma rules. This order confirms that commissioners have the discretion under the ccma rules to allow representation at ccma proceedings by persons other than those listed in rule 25. Although a party to the dispute may generally appear in person or be represented by a legal practitioner, the right to representation by a legal practitioner is restricted if the dispute being arbitrated is about an unfair. You may also be interested in we offer trusted legal services. Interestingly, the court did no go so far as to say that the ccma would have to be completely unrestricted in regard to allowing legal representation. One can only assume that the factors to be considered in that regard for the purposes of ccma proceedings, would include those in rule 25 1 c.
Previously, the ccma rules did not allow representation. Rule 25 of the ccma generally applies during arbitration and not only confirms the right to be represented by a legal practitioner but also restricts this right if the. The party initiating the proceedings may deliver a replying affidavit within three 3 days from the day on which any notice of opposition and answering affidavit are served on it. The lra, the ccma rules and the labour court contemporary labour law vol no 2 september 2003. The ccma is not rolling over on the issue of legal. Now, rule 25 states that a party may appear in person or be represented by a legal practitioner, a director or fellow employee, an official of the partys registered trade union or a registered employers organisation. Pdf constitutionalising the right legal representation at. The ccma, empowered by s1152ak of the labour relations act lra, enacted rule 25 in january which allows a party in an arbitration dispute to appear in person or be represented by a legal practitioner, candidate attorney or an entitled party in terms of subrule 1a. Ccma taken to court over rule 25, denying workers rights. The 14day notice rule continues to apply in respect of other disputes. Legal representation at the ccma vermeulen attorneys. New ruling may remove a commissioners discretion to grant. Restriction on legal representation at the ccma dingley.
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