The LRA contains provisions governing the right to representation in the CCMA’s processes insofar as it concerns the right of registered trade unions and employers’ organisations to represent their members but does not regulate the right of legal practitioners to represent parties in CCMA’s processes.
Who may represent a party in any process involving any dispute?
In any dispute and in any process-
• A party may be represented by an official or office bearer of that party’s registered trade union or employers’ organisation;
• An employer party may be represented by an employee of such party;
• An employer party may be represented by a director if a company and by a member if a close corporation;
• Parties, who are still minors i.e. less than 18 years old, may be represented by their legal guardians.
Who may not represent a party at all?
• As a general rule, an employee party may not be represented by a fellow employee, unless such fellow employees is a member, official or office bearer of that employee party’s registered trade union.
• A labour consultant or business associate may also not represent any party unless they qualify on a basis permitted by the rules. The provisions of Rule 25 have been amended to empower Commissioners to exclude parties who they believe that their membership of an employers’ organisation was for the sole purpose of circumventing the rules and representing parties therein.
• A legal practitioner may not represent any party during conciliation including conciliation part of a con-arb.
In what processes may a party be represented by a legal practitioner?
A party may as of right be represented by a legal practitioner in any arbitration including the arbitration on a con-arb, if the process does not relate to an unfair dismissal dispute in which a party has allege that the reason for the dismissal related to conduct or capacity.
A party may be represented by a legal practitioner in an arbitration including the arbitration part of a con-arb relating to an unfair dismissal dispute where a party (i.e. any party) has alleged that the reason for the dismissal related to conduct or capacity, but only if –
• The Commissioner and all the other parties consent; or
• The Commissioner made a ruling that it is unreasonable to expect a party to deal with disputes without legal representation after considering (a) the nature of the questions of law raised by the dispute; (b) the complexity of the dispute; (c) the public interest; and (d) the comparative ability of the opposing parties or their representatives to deal with the dispute.
What procedure should parties follow in applying for legal representation to be allowed?
• Parties who desire that legal representation be allowed should first seek the consent of the other party, preferably in writing. The grounds on which the consent was sought and granted must be specified. Once such consent has been obtained, the consent of the Commissioner should also be sought. Should all parties consent that legal representation be allowed, a Commissioner must consider the grounds on which the agreement is based and should exercise discretion whether to grant consent. Should the other party/parties as well as the Commissioner consent that legal representation is allowed, there is no need to bring formal application or to make further representations.
• Parties may also brief a legal practitioner shortly before the arbitration hearing rendering it impossible to allow the prescribed time for notices of opposition and replying affidavits. In order to facilitate the speedy resolution of disputes, the practice is to allow even oral representations in support of such applications to be made at the commencement of arbitration and for an arbitrator to make ruling based on such oral representations.
In their affidavits, statements or representations (as the case may be), parties should deal with the grounds on which it is alleged that it would be unreasonable to expect a party to deal with the dispute without legal representation and, in particular, with factors that a Commissioner must consider before making a ruling, i.e. –
• The nature of the questions of law raised by the dispute;
• The complexity of the dispute;
• The public interest; and
• The comparative ability of the opposing parties or their representatives to deal with the dispute.
Parties are seeking a ruling that legal representation be allowed should not anticipate that legal representation will be allowed and must prepare for arbitration so as to be able to proceed if legal representation is not allowed. Likewise, parties opposing an application that legal representation be allowed should not anticipate that legal representation will not be allowed and must prepare for the arbitration so as to be able to proceed with the arbitration if legal representation is allowed. If they would themselves require legal representation, if the other party is allowed legal representation, they should arrange for their legal representative to be available in the event that legal representation is allowed.
The rules do not indicate what weight should be attached to each of the four factors and Commissioner have discretion as to the weight to be attached to each factor.
• Whether are any novel/intricate questions of law that need to be decided; and
• Whether the questions of law are such that a party cannot reasonably be expected to deal with same without legal representation.
In deciding whether a matter is so complex that it is unreasonable to expect a party to deal with it without legal representation, a number of factors need to be taken into account. e.g. –
• Whether evidence of a technical nature need to be led;
• Whether it is relevant to hear evidence of a long history;
• Whether the circumstances giving rise to the dispute are complex;
• The number of witnesses to be called and the extent to which versions of different witnesses are required to be put under cross-examination;
• The expected duration of the hearing; and
• The extent to which the Commissioner would be able to assist the parties to lead their evidence and to ensure that versions are put during cross-examination.
The public policy that needs to be considered is basically the purpose behind the rules limiting the right to legal representation. The perception was that lawyers may make an arbitration process legalistic and expensive and that they are responsible for delaying the proceedings due to their unavailability and the approaches that they adopt. Evidence may be placed before Commissioner that the particular legal representative would not adopt a legalistic approach, that he/she would readily be available and that the assistance of a legal representative would shorten the proceedings and render it less expensive, Such evidence may cause a Commissioner to attach less weight to the public policy that led to the limitation on the right to legal representation. It is further relevant to consider that public policy requires that a party be afforded the right to legal representation in complex cases that may be have dire consequences for the party concerned and this may lead to a Commissioner attaching more weight to the other factors. Public policy further requires that a Commissioner should not create a perception of bias and when parties are unrepresented it is likely that a Commissioner will be required to provide more assistance and this in turn increases the likelihood of perceptions of bias.
The comparative ability of the parties and/or their representatives to deal with the dispute is an important consideration. In this regard a Commissioner should not only consider what the position would be if legal representation is not allowed but also what it would be should legal representation be allowed. Educational qualifications, relevant experience and the degree of sophistication are amongst the factors that should be considered. There is more pressure on an individual presenting his/her own case, to deal with the dispute and this should also be taken into account.
The right to legal representation is acquired once a Commissioner has concluded that it would be unreasonable to expect a party to deal with the dispute without legal representation. Once a Commissioner has reached such conclusion he/she has no discretion and the party concerned becomes entitled to legal representation during the arbitration. If the Commissioner refuses legal representation and the party concerned is/are lay person/s, there is an obligation on the Commissioner to assist the parties on a neutral basis, to present their cases.
What proof should Commissioners require before allowing a representative to represent a party?
The Commissioner should embark on a fact finding exercise in order to establish whether the representative has a right to appear in the process, In this regard the Commissioner –
• May call upon the representative to present proof that he/she qualifies in terms of the LRA and the rules to represent the party; and
• May require the representative to tender any documents, such as, constitutions, pay slips, contract of employment, documents and forms, recognition agreements and/or proof of membership of a trade union or employers’ organisation.