A question of representation

Last week's article addressed some aspects of the question of labour law consultants representing their clients at CCMA proceedings.

We have received some correspondence a labour law consultant, accusing us of publishing misleading material. 

The alleged misleading material was contained in the paragraph reading “An important point to note is that in all instances, labour consultants are prohibited from representing applicants or respondents at CCMA or Labour Court proceedings,” the offending words being “in all instances.”

The reason that we have been accused of publishing misleading material is because it is not “ in all instances” that labour law consultants may not represent - the exceptions are that the labour law consultant can represent if he is a member of, or official of, or office-bearer of, a registered trade union or registered employers organisation.”

We agree that it may possibly not have been correct to say “in all instances,” and to any of our readers who may have interpreted this literally, and to any other person who may have been misled, we offer our sincere apologies.

It was certainly not our intention at all to attempt to mislead anybody, and we would never do such a thing deliberately.

We are held in extremely high regard in the employment world, and our reputation and integrity are beyond reproach.

Our impeccable reputation is sufficient indication that we would never stoop so low as to deliberately attempt to mislead our countrywide readership or any other person.

We must point out specifically and directly that the obvious purpose of the article was to point out to labour law consultants that, in terms of existing case law, there might be other (additional) avenues open to labour law consultants, through which they can represent their clients at CCMA proceedings, other than what is contained in CCMA Rule 25. No doubt all labour law consultants are familiar with the content of that rule.

We are sure that readers are fully aware that in all our newsletters, we state that “for further information, readers should contact ……..etc.”

This indicates that on any subject material, further information is available - and readers are invited to make use of that facility to obtain any further information.

We are also sure that our many clients and readers do not, in any way, construe our newsletters to constitute final legal opinion or to constitute a final legal solution to any problem dealt with in the subject matter.

CCMA Rule 25 states, in effect, that a labour law consultant can only represent if he is a registered employers organisation, or employed by, or is a member, official, or office-bearer, of a registered employers organisation or registered trade union.

The rule, in fact, does not even mention the words “ labour law consultant.” It only states that “ a party to the dispute may appear in person or be represented only by (inter alia) any member office bearer or official of that party's registered trade union or registered employers organisation.”

A person applying a totally literal meaning to that, might well conclude that labour law consultants, since they are not mentioned, are completely prohibited from representing.

I therefore pose the question -  Is it possible that such a person could interpret this rule as being “misleading”, because it does not specifically state that “a member, office bearer or official” includes a labour law consultant?

I do not think so – and in my view, no reasonable person could conclude that the rule is misleading..

Therefore, without the words “labour law consultant” being actually mentioned, it is implied that if a labour law consultant is a member, office bearer, or official of a registered trade union or registered employers organisation, then he can represent. If he does not fall within one of those categories, then he cannot represent.

Last week's article brought to light that there may exist another avenue - which can only be to the advantage of labour law consultants.

It is, in our view, logical and sensible for us to hold the reasonable opinion that readers would never construe any article, in any newsletter or magazine or newspaper, or even television media, to constitute a final legal opinion or a final legal solution regarding the subject matter of the article.

It is again our reasonable and logical opinion that readers would (or certainly should) always check with their own labour law practitioner before they take any action on what is reported in any media article, because quite obviously any such article usually constitutes nothing more than the opinion of, or the interpretation of, the author, and it is logical that readers should know that any such article can never contain every single fact on the subject matter.

For that very reason, it is logical for us to conclude that readers would (or should) always seek further advice or clarification  before instituting any action based on the subject matter of the article.

Both the author and S.A. Labour Guide hereby repudiate any responsibility, liability, or accountability of whatsoever nature, for any adverse consequences suffered or incurred, including financial loss, by any person who acts on information contained in this newsletter without first obtaining a full and proper legal advice and legal opinion from their own labour law practitioner.

The South African Labour Guide is a private company and has no association with the Commission for Conciliation, Mediation and Arbitration (CCMA), you may find the CCMA on www.ccma.org.za