Home

 

New Ruling may remove a Commissioner's discretion to grant legal representation at CCMA

by Cowan- Harper- Mazikizela Attorneys

 

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. In these circumstances the party wishing to engage a legal representative must obtain the consent of the Commissioner and the other party or they must apply to do so by way of a formal application. The application must satisfy the Commissioner that legal representation should be permitted, taking into account the complexity of the dispute, the nature of the questions of law raised, the comparative ability of the parties to deal with the dispute and public interest considerations.

This issue has always been controversial because Rule 25 limits the rights of legal representatives (and effectively their clients) in a Constitutional democracy and has led to injustices on occasions because a party may not have the skills to represent itself.  

The Legal Practice Act 28 of 2014 ("the LPA") came into effect on 1 November 2018. Section 25(2) of the LPA states:- “A legal practitioner, whether practising as an advocate or an attorney, has the right to appear on behalf of any person in any court in the Republic or before any board, tribunal or similar institution.” This appears to be in conflict with Rule 25 of the Rules of the CCMA. 

In the recent matter of Coetzee v Autohaus Centurion (Case No: MIPT27810, 18 February 2019) before the DRC of the Metal and Engineering Industries Bargaining  Council, the Commissioner found that due to the fact that the Legal Practice Act is primary legislation, it prevails over the Rules of the CCMA and the DRC, as the Rules only enjoy the status of subordinate legislation. The Commissioner also found that section 25 of the Act has effectively nullified Rule 25 of the CCMA Rules and similar Rules in Bargaining Councils. The Commissioner concluded that legal representatives thus no longer need apply to be permitted to represent parties at proceedings before the CCMA or bargaining councils since legal representation is permitted by the Legal Practice Act.  

The Ruling is controversial and is the subject of some debate, particularly as it theoretically permits legal representatives to appear at conciliation. Furthermore, the CCMA Rules excluded legal representatives from misconduct and incapacity disputes in order to ensure that the LRA’s objectives of speedy and cost-effective dispute resolution were achieved. That reasoning appears to be a rationalisation and cannot apply generally but it nevertheless underpinned the policy.  

The CCMA may approach the Labour Court to clarify the apparent conflict between the CCMA Rules and section 25 of the Act. 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. The Directive equates section 8 of the (now repealed) Attorneys Act 53 of 1979 with section 25 of the LPA and is of the view that there is no practical difference between the two sections.  

Employers should take note of this important development as it may impact on their strategy when employees utilize legal representatives at the CCMA or Bargaining Councils. 

Please contact the Employment Law, Benefits, Industrial Relations & Discrimination Department of Cowan-Harper-Madikizela Attorneys for more information.

You may contact Cowen- Harper- Madikizela attorneys at 011 048 3000 or

 

 

 

 

 

 

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

Read More >>>

 

Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

Read More >>>

 

Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

Read More >>>

 

Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

Read More >>>

 

 

 

 

 

 

Courses and Workshops

 

                                         

 
 

Compensation for Occupational Injuries and Diseases Course

22 August 2019 (Fully Booked)

Tsogo Sun: Century City: Cape Town

12 September 2019

Southern Sun: Maharani Towers: Durban

Employment Equity Committee Training

23 August 2019 (Fully Booked)

Emperors Palace: Convention Centre

29 August 2019 (Fully Booked)

Tsogo Sun: Century City: Cape Town

30 August 2019

Tsogo Sun: Century City: Cape Town

27 September 2019

Emperors Palace: Convention Centre

04 October 2019

Southern Sun: Maharani: Durban

Shop Steward Training

28 August 2019

Emperors Palace Convention Centre

Basic Labour Relations

04 September 2019

Emperors Palace: Convention Centre

The OHS Act and the Responsibilities of Management

13 September 2019

Southern Sun: Maharani Towers: Durban

19 September 2019

Emperors Palace: Convention Centre

28 November 2019

Protea Hotel By Marriott Tyger Valley: Cape Town

Managing Day to Day Issues/ Problem Employees Full day workshop

20 September 2019

Emperors Palace: Convention Centre

27 September 2019

Tsogo Sun: Century City: Cape Town

Hazard Identification & Risk Assessment Course

18 October 2019

Emperors Palace: Convention Centre

21 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

Workshop Incident/Accident Investigation Course

25 October 2019

Emperors Palace: Convention Centre

22 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

  

 Our Clients 

 

Android App On Google Play

Android App On Google Play