The Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as ‘the CCMA’) has the jurisdiction to facilitate dispute resolution in matters between employers and employees. These proceedings are regulated by the Rules for the Conduct of Proceedings Before the CCMA(hereinafter referred to as ‘the Rules’). The Rules establish and describe the various processes that are to be followed when approaching the CCMA. For example, one such rule relates to the topic discussed below, relating to representation at the CCMA.
Conciliation
Conciliation is when the parties look to settle their dispute between themselves. During this time, the appointed Commissioner plays a more facilitative role, wherein they would try and assist in opening the channels of communication for the parties to try and reach a settlement on their own terms. During this process, the employer can be represented by a director or employee or an office-bearer of an employer’s trade union or employer’s organisation. Employees partake in this process unassisted.
Should the matter then remain unsettled, the Commissioner issues a Certificate of Non-Resolution, and the matter is to be referred for arbitration.
Arbitration
The arbitration process differs from the conciliation process in that the matter is now to be set down for hearing before a Commissioner who is to, after applying his mind to the facts of the matter and relevant legislation, make a ruling. This requires a more structured approach as each party is afforded an opportunity to present their evidence and question witnesses.
Therefore, it is a natural assumption that in such instances, a human resources representative would have the advantage should they have experience in CCMA processes compared to an employee with little to no knowledge of the proceedings of the CCMA.
Rule 25(1)(b) allows an employee to be represented by either a legal practitioner or candidate attorney through the arbitration process. This rule does, however, have its exception.
Should the arbitration be in respect of a matter wherein the fairness of a dismissal is questioned, and a party alleges that the reason for the dismissal relates to the employee’s conduct or capacity, the employee will not be entitled to representation by a candidate attorney or legal practitioner. In this scenario, representation for the employee is still attainable but only if the Commissioner and all parties agree or, should any party object thereto, if the Commissioner, after hearing arguments on this point, rules that representation is to be allowed considering the following factors:
(1) the nature of the questions of law raised by the dispute;
(2) the complexity of the dispute;
(3) the public interest; and
(4) the comparative ability of the opposing parties or their representatives to deal with the dispute
The abovementioned considerations are handled on a case-by-case basis; however, its constitutionality was challenged in the matter which led to the judgment handed down by the Supreme Court of Appeal in CCMA v Law Society, Northern Provinces (005/13) [2013] ZASCA 118 which ultimately upheld its operation
Conclusion
The above serves only as a brief overview of the general submissions regarding representation at the CCMA. Should you find yourself a party to an application before the CCMA, it is advised that you consult with an appropriately qualified and experienced labour law attorney to ensure you are informed and advised of the various exceptions to the positions as described above.
Contact SchoemanLaw Inc for all your labour law needs.
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