Legal representation in internal disciplinary proceedings There is a clear concern that the right to be represented by legal representatives limits the CCMA`s ability to work within these parameters and unnecessarily complicates and prolongs the procedure. The drafters of The Industrial Relations Act 66 of 1995 were supposed to create a conciliation procedure free from the technical details that sometimes burdened legal disputes before the former Labour Court. To this end, they established the Conciliation, Mediation and Arbitration Commission and expressly instructed the Commissioners to deal with arbitration proceedings “with a minimum of legal formalities” (Article 138(1)). But the authors went further. They provided in Article 140(1) of the LRA that `legal professionals` (i.e. practising lawyers) may represent the parties in disputes concerning dismissals relating to the conduct or legal capacity of employees only if the Commissioner and all other parties have given their consent or, whether one of the parties objected, whether the Commissioner decided to do so, taking into account the nature of the legal issues raised by the dispute and its complexity. the public interest and the comparative capacity of counterparties to regulate arbitration themselves. This restriction may be relaxed if the Commissioner and all other parties agree or conclude that it is not appropriate to expect a party to deal with the dispute without legal representation after considering relevant factors, such as: It follows that lawyers and candidate lawyers are also automatically excluded from arbitration, relate to compliance orders for BCEA and NMWA. On the other hand, the employee may be represented by a legally trained trade union representative, while the management representative may be a layman as a superior in the first place.
As a result, arbitrators have rendered adversarial arbitral awards concerning legal representation, particularly in conciliation and arbitration proceedings. It was inevitable that legal restrictions on legal representation would be challenged in court. [See Chemical, Energy, Paper, Printing, Wood and Allied Workers Union obo Prince v Shatterproof (2003) 24 ILJ 1161 (CCMA); CEPPWAWU obo Nyanga v. Mondipak ,2003] 7 BALR 807 (CCMA)]. In the present case, the disciplinary proceedings were governed by a collective agreement concluded at the level of the Collective Council. With regard to representation in disciplinary proceedings, the collective agreement expressly and repeatedly stipulates that an employee has the right to be represented in a disciplinary investigation only by a colleague, a shop steward or a trade union official. However, external legal representation is not mentioned or regulated. 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. The Conciliation, Mediation and Arbitration Commission (CCMA) is a forum where labour disputes can be resolved quickly and efficiently with a minimum of legal formalities and procedures. Legal representation is not automatically permitted in the event of fault and incapacity for work.
A lawyer who wishes to represent his client at the CCMA must apply to the Commission for authorization to represent his client. In considering the need for legal representation (albeit at the level of arbitration), the tribunal duly applied the criteria of Rule 25 of the CCMA Rules, noting that the issue was not legally complex and that, given the comparative capacity of the parties to deal with the dispute, the tribunal concluded that allowing legal representation would unduly upset the balance of capacity. Therefore, it was concluded that the employer`s failure to allow legal representation in the circumstances was not unfair. On the question of discretion, the Court concluded that the collective agreement in question clearly leaves no room for such discretion and that workers are therefore not entitled to legal representation, as requested in the case before the courts. I have already mentioned that the predominance of collective agreements could create a right to legal representation in internal disciplinary proceedings. Similarly, an agreed disciplinary policy may create such a right. Even at the arbitration stage under the auspices of the CCMA or a negotiating board, legal representation in disputes relating to conduct or legal capacity is not permitted unless the Commissioner and all other parties usually agree. In this case, legal representation was refused in the arbitration proceedings, which were decided after review before the Labour Court (LC). 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.