Results 1 to 3 of 3

Thread: UNFAIR DISMISSAL AND CCMA HEARINGS – CAN YOUR LAWYER REPRESENT YOU?

  1. #1
    Platinum Member Mike C's Avatar
    Join Date
    Apr 2012
    Location
    Durban
    Posts
    2,240
    Thanks
    207
    Thanked 310 Times in 268 Posts

    UNFAIR DISMISSAL AND CCMA HEARINGS – CAN YOUR LAWYER REPRESENT YOU?

    Copied from LAWDOTNEWS with permission.


    Although CCMA rules generally allow you to have legal representation in arbitrations, there is one important – and common - exception.

    Where the dispute is about the fairness of a dismissal related to either misconduct or incapacity, the default position is that you are not entitled to be represented by a legal practitioner. The commissioner in each matter has a discretion to allow such representation, but only if either -

    The commissioner and all parties consent, or

    The commissioner concludes that it is “unreasonable” to expect you to deal with the dispute without legal representation.

    In a recent High Court decision this restriction - as currently worded – has been found to be arbitrary and unconstitutional.

    Critically, though, the Court suspended the declaration of constitutional invalidity for 3 years to enable the relevant rule to be replaced, and noted that the rules need not provide for an unrestricted right to legal representation - so even the new rule will most likely contain restrictions (and a discretion for commissioners).


    The current position

    So do you now have an automatic right to legal representation at your arbitration? The answer is still “no, you don’t”.

    The Court’s suspension of its declaration of invalidity means that individual commissioners are, for now at least, still free in law to apply the existing restrictions. Whilst some commissioners may in practice be more ready now than in the past to allow you legal representation in arbitrations, and whilst you should certainly ask for it, you are by no means guaranteed to get it.
    An education isn't how much you have committed to memory, or even how much you know. It's being able to differentiate between what you do know and what you don't. - Anatole France

  2. Thanks given for this post:

    Dave A (29-Jan-13)

  3. #2
    Site Caretaker Dave A's Avatar
    Join Date
    May 2006
    Location
    Durban, South Africa
    Posts
    20,978
    Thanks
    3,055
    Thanked 2,462 Times in 2,067 Posts
    Blog Entries
    12
    I was wandering around, came across this post and noted -

    Three years have now passed.
    The trouble with opportunity is it normally comes dressed up as work.

  4. #3
    Platinum Member sterne.law@gmail.com's Avatar
    Join Date
    Oct 2009
    Location
    Durban
    Posts
    1,328
    Thanks
    38
    Thanked 561 Times in 410 Posts
    Blog Entries
    7
    The decision was overturned on appeal, and the unconstitutionality did not stand.
    http://www.saflii.org/za/journals/DEREBUS/2013/209.html

    The status remains that legal representation is not an automatic right.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

  5. Thanks given for this post:

    Dave A (29-Mar-16)

Similar Threads

  1. Wanted: Lawyer to draw up contract
    By Perform Computers in forum General Business Forum
    Replies: 0
    Last Post: 20-Jul-11, 01:37 PM
  2. [Question] Looking for a Lawyer who deals with Trademarks???
    By Mark Atkinson in forum General Regulatory Compliance Forum
    Replies: 2
    Last Post: 11-Jul-10, 11:20 PM
  3. Lawyer costs ito drafting a will
    By TanyaK in forum General Business Forum
    Replies: 5
    Last Post: 23-Sep-09, 07:47 AM
  4. Unfair dismissal???
    By Taswell Strydom in forum Labour Relations and Legislation Forum
    Replies: 23
    Last Post: 02-Feb-09, 09:29 PM
  5. [Question] Unfair dismissal
    By jenine in forum General Business Forum
    Replies: 8
    Last Post: 13-Aug-08, 09:10 AM

Tags for this Thread

Did you like this article? Share it with your favourite social network.

Did you like this article? Share it with your favourite social network.

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •