New decision may deprive commissioner discretion to refuse legal representation in CCMA and bargaining council arbitration proceedings

24 May 2019

A recent landmark decision of the South African Metal and Engineering Industries Bargaining Council could see Commission for Conciliation, Mediation and Arbitration (“CCMA”) commissioners stripped of their discretion in granting legal representation for those involved in unfair dismissal disputes arising from misconduct or incapacity.

Until now, Rule 25 of the Rules for the Conduct of Proceedings in the Commission for Conciliation Mediation and Arbitration (the “CCMA Rules”) precludes attorney representation in unfair dismissal disputes arising from misconduct or incapacity, unless the commissioner and all other parties consent, or the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation. This rule has long been the subject of controversy with the most vocal critics claiming that this rule is unconstitutional.

In addition, following the recent amendments to the Rules in early 2019, the introduction of Rule 25(e) prohibits, altogether and without consideration to any other factors whatsoever, the representation of attorneys in section 189A large scale retrenchment facilitations.

For years, and since the initial promulgation of the CCMA Rules, attorneys have been required to convince commissioners, in some instances unsuccessfully, to exercise their discretion in favour of granting applicants or respondents legal representation.

However, in Coetzee v Autohaus Centurion, Mr Coetzee’s attorney argued that the Legal Practice Act, 2014 (the “LPA”) deprives commissioners of their discretion to refuse legal representation, whatever the rules of the bargaining council or the CCMA might say.

Noting that the LPA gives advocates and attorneys (including candidate attorneys) the right to appear in any court or tribunal (this right is endorsed in terms of section 25(2) and 25(5) of the LPA), Commissioner Stapelberg was of the view that the rules of the CCMA and bargaining councils conferring discretion on commissioners to refuse to allow legal representation in cases involving dismissals for misconduct or incapacity could no longer apply. He accordingly held that he was obliged to permit both parties legal representation.

Another important consideration in this decision was the fact that the Labour Relations Act, 1995 (the “LRA”) and other legislation applicable to CCMA proceedings has not been amended since the LPA came into operation in November 2018.

In addition, because the LPA is an act of parliament, the CCMA Rules are considered subordinate to it, and where inconsistent with such legislation, those rules ought to be amended to bring them into line with the relevant legislation.

Having regard to the Coetzee decision, it appears that the time may have finally come where commissioners are totally deprived of their discretion to refuse legal representation in CCMA and bargaining council arbitration proceedings. In fact, it would appear with reference to the LPA, that the total exclusion of attorneys, even in conciliation proceedings as well as facilitation proceedings, may now be impermissible.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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