The North Gauteng High Court this week (on Monday 15 October) ordered that the Commission of Conciliation, Mediation and Arbitration (CCMA) should consider new rules that will not arbitrarily prohibit legal representation in misconduct or incapacity dismissal disputes.

Johan Botes, Director in the Employment practice at Cliffe Dekker Hofmeyr said, “The High Court held that Rule 25(1)(c) of the CCMA Rules is constitutionally invalid on the basis of its irrationality. This rule limits the rights of parties appearing before the CCMA to be represented by legal practitioners. Where the dispute referred to the CCMA concerns the dismissal of an employee for reason of the employee’s conduct or capacity, the CCMA Commissioner exercises discretion in permitting legal representation. In all other arbitration proceedings before the CCMA, legal representation is automatically permitted.”

Botes explained that Judge Tuchten dismissed argument that there is valid reason for automatically allowing legal representation at all CCMA arbitrations, while also limiting this right in respect of misconduct or incapacity dismissal arbitrations. The judge stated that identifying such categories of cases (misconduct and incapacity dismissals) for different treatment without considering the merits of the cases seems to be the essence of arbitrariness.

The judge further rejected the reasoning that a CCMA Commissioner could determine at the outset of a matter whether it was complex (and required legal representation). At paragraph 36 of the judgment the judge states “[i]t fairly frequently happens that a case which appears before it starts to be straightforward turn out to be complex.”

“The CCMA opposed the application brought by the Law Society for the Northern Provinces. It stated that the CCMA rules represented the fruits of negotiations between the social partners. The CCMA argued that misconduct and incapacity dismissals can rightly be finalised without an automatic right to legal representation, as this reflects the negotiations between government, business and labour in respect of these issues.

“The Court heard that disputes at the CCMA ought to be finalised with the minimum of legal formalities and that the Court should loath to interfere with the rules that serve the interests of the parties. Eighty per cent of all disputes referred to the CCMA involve disputes about misconduct dismissals. The CCMA argued that the  dispute resolution process will be negatively affected should there be an automatic right to legal representation,” Botes said.

The judge dismissed these arguments. For employers or other parties, the dismissal of one employee (for incapacity of misconduct) may not be significant, but for the employee the loss of his or her job is a serious matter “…particularly where the job done by the allegedly offending employee is a humble one, in respect of which the supply of job seekers exceeds the demand of potential employers.”

The judge further dismissed suggestion that legal practitioners may obfuscate the disputes, unnecessarily complicating issues and wasting time. The judge stated that the courts should staff presiding officers who can recognise, and deal appropriately, with such conduct. He stated that, in the cast majority of cases “..lawyers contribute to the efficient and speedy resolution of disputes by agreeing matters which are not genuinely in dispute and limiting evidence, cross-examination and argument to that which is necessary for the adjudication of the case.”

Botes stated, “In our experience, most CCMA commissioners welcome legal representation at arbitrations, probably for the reasons listed by the judge. Seasoned arbitrators make good use of legal practitioners to resolve disputes efficiently. It would be a victory for justice and the rights of employers and employees where every litigant can decide whether or not to use legal representation. If litigants feel that their legal representatives do not add value to the proceedings, there will not be a market for legal representation at the CCMA.”

The High Court suspended its declaration of invalidity for thirty six months to enable the relevant parties to consider and promulgate a new sub rule regarding legal representation.

Written by Johan Botes
Director - Employment Law
Cliffe Dekker Hofmeyr Inc