It is common, most of the employment disputes at the CCMA or Bargaining Councils are disputes relating to dismissal for employee's conduct. Thus, in terms of Rule 25 of the CCMA Rules and most Bargaining Councils' Rules, in arbitration proceedings, the right to representation by a legal practitioner is restricted if the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee's conduct or capacity.
However, the rules provide Commissioner in Arbitrations disputes to exercise their discretion in allowing legal representation or not. Therefore, these restrictions may be relaxed if the Commissioner and all the other parties consent, or if the Commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering relevant factors, such as
- 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.
Any party to the dispute can bring an application arguing that he/she should be allowed legal representation and would be required to motivate or justify why should it be allowed on the grounds set out above.
Although one must acknowledge that these institutions are built on the spirit of conciliation and resolving labour-related issues in a speedily and cost-effective manner for the benefit of employers and employees, more particularly vulnerable employees, furthermore, they should not be over-legalistic in their nature, but bearing in mind that the Constitution1 provides for legal representation.
Considering all the above factors, what stands out is the last factor, which is the comparative ability of the opposing parties or their representatives to deal with the dispute. The Commissioner has to compare the Applicant's ability and that of the Respondent to deal with a matter adequately. Often, Applicant's will not be able to sufficiently deal with their cases if legal representation is not allowed. Balancing the scales, it is trite that employers employ the services of Employer Organisations or individuals with a legal or HR background to represent them at Arbitrations. It may be a non-practising Attorney or legal or HR graduate. This tends to intimidate employees and leads to or appear that the balancing of scales is tipped against the employee.
For example, here Mr Zulu, who has worked as a forklift driver for 20 years. He has never been before any CCMA or Bargaining Council and does not belong to any Employee Union. He is not articulate in English and does not know how to examine or cross-examine a witness. The fact that an interpreter is in the room would not change the impression that he feels he will be prejudiced, leading to losing his case. Mr Zulu's representative is required to make an application to motivate why he should be legally represented. After that, the Commissioner refuses to grant legal representation.
On the other side, the employer employs a lawyer acting under the auspices of a registered employer organisation or an HR veteran with years of experience in such matters to represent the employer during Arbitration. Unfortunately, the latter will be allowed to represent the employer without applying for legal representation.
Balancing the scales
Already, the dynamics will create an impression to the employee that he has no prospects of success and will not be able to put his case adequately. To the employee, justice will seem to be elusive. These fundamental institutions play an integral role in the furtherance of social justice. However, they seem to ignore the fact that justice must not only be done but must be seen to be done.
What good do these institutions serve if the vulnerable members of our society feel like the employers are getting away with murder and bribe Commissioners because they can afford to do so? If they had at least representation, they might have had a fighting chance. But, unfortunately, this fuels allegations of collusion between employers and commissioners, resulting in the trust relationship and confidence bestowed by the public on these institutions deteriorating.
At times it all boils down to human relations, whether an employee feels uncomfortable and intimidated by the other party regardless of the presence of an interpreter and Commissioner whose duty is to act as an umpire. Since employees often lack both the skill and knowledge to adequately prepare and articulate their side of the story. Without some form of legal representation, though they are not in the wrong, they face the risk of settling or losing because they do not know how to establish their innocence.
Commissioners should refrain from unreasonably refusing to grant legal representation. Therefore, it is critical to appreciate that where one party has legal representation, and the other does not, an automatic assumption of an unfair process may arise. Therefore, in respect of comparative ability, whilst acknowledging the employee's inability to deal with the matter, close attention and considerations should be paid to the employer's representative office and experience in dealing with issues of this nature. Especially when refusal to allow legal representation will prejudice the employee and against social justice.
1 Constitution of the Republic of South Africa, 1996 [No. 108 of 1996].
Originally published 21 May 2021
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