- Introduction
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”). The LRA has determined that South Africans have the right to refer unfair dismissal claims to the CCMA. This is a valuable right, since the CCMA aims to promote the faster, informal and cost-efficient resolution of these types of cases.
Most South Africans who refer unfair dismissals to the CCMA are, however, unaware that there is a CCMA rule which moderates legal representatives from being able to assist parties automatically in cases where dismissals stem from misconduct or incapacity allegations.
A few months ago, this rule (or similar version) was considered to be in conflict with the Legal Practices Act in Coetzee v Autohaus Centurion (“Coetzee case”) by a recent finding of the Metal and Engineering Industries Bargaining Council.(the MEIBC) The MEIBC has a similar function as the CCMA but limited to the designated industry. This ruling created much uncertainty regarding whether there were any restrictions on the right to legal representation.
The CCMA’s first directive for 2019, effective as at 23 March 2019, has however addressed this uncertainty and stated that the Coetzee case should not be applied.
- Limited right to legal representation in the CCMA
Rule 25 of the CCMA Rules, as amended in 2019 (“the Rules”) regulates the right to legal representation in the CCMA. 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 dismissal where the reason for the dismissal relates to the employee’s conduct or capacity.
This restriction can be relaxed in two instances. Firstly, it will be relaxed where the commissioner and all the other parties consent to the presence of legal representatives. When both parties cannot agree to legal representatives being present in the arbitration the party who needs the assistance of legal representatives is forced to bring a formal application for legal representation to the Commission. The commissioner will then need to determine whether it is unreasonable to expect a party to deal with the dispute without legal representation, after considering relevant factors.
This makes the process longer and more costly. Further, even if the party might genuinely prefer the assistance of legal representatives, the discretion rest with the commissioner. Access of legal representatives to the proceedings in these cases is, therefore, never automatic.
- Th deviation: Coetzee v Autohaus Centurion
Rule 43 of the MEIBC rules mirrors the provisions of rule 25 of the CCMA. In the Coetzee case, the arbitrator came to the conclusion that section 25 of the Legal Practice Act, 2014 (“LPA”) supersedes rule 43 of the DRC and rule 25 of the CCMA (discussed above).
Section 25 of the LPA states that a legal practitioner has the right to appear “in any court in the Republic or before any board tribunal or similar institution” but “subject to any other law”.
- The CCMA strikes back
Following the Coetzee decision, the CCMA issued a directive regarding the right to legal representation. It disagreed strongly with the findings of the arbitrator and declined to consider this to be a persuasive precedent.
The first reason for this stems from the argument that section 25 of the LPA must be interpreted alongside other provisions of the LRA. Sections 115(2A)(k) and 210 of the LRA state that the CCMA has the power to make rules that regulate the right of any person to represent any party inarbitration proceedings. Furthermore, these provisions state that, where there is a conflict the provisions of the LRA and the provisions of any other law, the provisions of the LRA will prevail.
Secondly, it was argued that the purpose of the LPA is not to regulate the operation of the justice system. The LPA merely seeks to qualify legal practitioners to appear in different courts and tribunals. The requirements with which these practitioners must comply with to appear in these courts and tribunals must still be sourced from the courts and tribunals that the practitioners are practicing in. The CCMA rules are therefore according to the CCMA still relevant.
It has been motivated that rule 25 represents “a proper exercise of power” by the CCMA in accordance with the provisions of section 115(2A)(k) and in no way conflicts with the provisions of the LPA. It was stated further that, even if it were the case that there was a conflict between the LPA and the LRA, the LRA (which would prevail between the two Acts) expressly gives the CCMA the power to regulate who may and may not represent parties at any of its processes, including at arbitration. In giving effect to section 115(2A)(k) of the LRA and accordingly, Rule 25 of the CCMA Rules, nothing has changed.
On the counter argument the CCMA’s power has been delegated and that delegation arguably needs to be in conformity with other statute. It is arguably not the LRA and LPA that are in conflict but rather the LPA and the CCMA Rules. In this case the LPA, it can be argued, clearly empowered legal representation in all forums and that must include the CCMA.
- Conclusion
It is undisputed that legal representation which frustrates the dispute resolution process with technical arguments is undesirable. However, a great majority of unfair dismissal cases referred to the CCMA and other resolution forums stem from dismissals relating to conduct or incapacity. The CCMA directive clearly states that Commissioners retain their discretion to refuse or permit legal representation. Parties who, therefore, need the assistance of their legal representatives must note that they will have to jump through the usual hoops before securing representation during arbitrations and do not assume a welcoming Commissioner when you arrive with your advocate and attorney carrying their mandatory briefcases.
We suspect the Labour Court may have the final word on this issue.