CCMA - questions

[Citizen X]

The CCMa only allows CCMA translators, they make this service available. The employee is estopped or rather precluded from bringing his own translator. The CCMA translator is already bound by the CCMA code of conduct and may strictly and only translate....

[Just Gone]

Thanks for all your help Vanash ......... been very helpfull - I went to the ccma today where I was called to arbitration - the dumbass employee did not arrive so had to wait the customary 30min then case dismissed ...... but get told that he can oppose the dismissal if he wants and reopen !!! But hopefully he has dissappeared now and gone away !

[Citizen X]

I think he's gone for good!

[AmithS]

The last thing I need to know is at the Bargaining Council hearing, are the rules the same? i.e. is no legal representation allowed as discussed above for the ccma instance?

I looked through the bargaining council document but they make no mention of this!

[Citizen X]

Okay, Bargaining councils are regulated by the LRA but each BC will have it's own personalized way of doing things. In my expereience though, I've never come across a bargaining council that allows attorenys to represent an employee that has a dispute. They do however allow any union member, official or office bearer to represent the employee...

[AmithS]

When you say official or office bearer are you referring to people that work for the bargaining council?

[Citizen X]

no, the bargaining council itself, provide a mediation service. The parties attending a hearing must arrange for their own representation. The bargaining councils endorse an employee being represented by any member of a Union, any office bearer of a Union and any official of that UNion.
This bring me to my main point, if typical shop stewards and other memebers of unions are receiving training on the disciplinary process and on how to adduce evidence then so should we. We need to stengthen our resolve. And, the only way that this can happen is if all members share their practical knowledge...

[Just Gone]

It is so good to read good valuable sensible advice here - thanks again Vanash :-)

[sterne.law@gmail.com]

Legal representation -
CCMA and BC have the same rules with regards hereto.
Attorneys acting for employees are accepted far easier than for employers. Our experience is that -
a) the employer is deemed capable of handling the matter, particularly where ether have an HR or IR manager representing,
b) the employer is given an opportunity to seek legal counsel - the matter is then postponed, allowing the company to get an attorney. This occurs where the Commissioner believes that the employee vs employer is not a level game and therefore the employee needs assistance, thus a postponement to allow the employer to get an attorney and restore the balance.
In our experience we have only been refused to represent an employee on one occasion and this was subsequently over ruled on review.
Attorneys acting for employers is a more difficult situation.

As a practice we always inform the opposition that we are acting for the relevant party. One does not want to get to the CCMA and othe party says they now need an attorney and want wasted costs.

[AmithS]

Hi Sterne,

So you are saying the chances of the CCMA or BC allowing legal representation i.e. a lawyer at the hearing is very high?

[Dave A]

I must confess Anthony's post has me confused too - it seems to contradict the procedural stuff Vanash post earlier.

[Citizen X]

It's a matter of leagl opinion really. In formulating an opinion, I look to the Labour appeals Court for guidance. I also look at what the relavant staute has to say on the matter.
1. As it stands, atorney's are not allowed at concialiation for the representation of an employee. At arbitration, the employer can object to the employee being represented by an attorney;
2. The employee must be able to show that there are complex legal issues to be argued which cannot be reasonably expected of the employee to execute efficiently and effectively;
3. Commisioners themselves have to look to the LAC for guidance and well as what the actual statute states;
4.Both substantive fairness and procedural fairness are cornerstones of the LRA;
In my opinion a commissioner cannot simply classify all employers as having the upper hand over the employee when it comes to representation becaus eof the employers infrastructure. If this truly was the case, then one must simply ask, where do we draw the line" Do we apply a rule that an employer is more equipted to deal with a labour dispute than an employee and becuase of this premise, do we then automatically rule in favour of an employee being represented by an attorney;
5. All businesses are not the same size and and don't have the same profit margins and number of employees so it will be very problematic to have a hard and fast rule of thumb with regards to representation. As the law stands, attorneys are not allowed at conciliation and must be able to show good cause at arbitration to represent an employee;
6. We must remember that the CCMA and bargaining councils are "alternate dispute resolution" bodies;
7. When in doubt about such a matter always look to the lAc and the statute for guidance as they are very clear on this matter of representation and judicial discretion.

[sterne.law@gmail.com]

The chances for the employee are very high, for the employer much more difficult unless via a employers organization.

[Citizen X]

Hi Anthony,

I would firstly like to impress upon you that I have found many of your posts to be beneficial. I also would like to add that I have a profound respect for everyones opinion as a generlal rule in my life.
1. What you've essentialy done is put yourself in the commissioner's position and placed a presumption before us, i.e that the commissioner will use judicial discretion to allow an attorney to represent an employee. On this note even in the magistrates court and high court a magistrate and judge respectively can only exercise so much judicial discretion as they are bound by the law;
2. A commissioner cannot place every single employer in the broad category of employer. Employers difer on the basis of size, profit margins and number of employees. The LRA itself makes provision for smaller businesses to dispense with the rules and procedures of larger businesses;
3. It cannot be stated as a legal fact that the commssioner will automatically allow an employee to be represented by an attorney, in the first instance, each individual case is considered on it's own merits, in the second instance, the law itself reinforced by labour appeal court judgments currently states that an employee may not be represented by an attorney at conciliation and that should an employee bring an attorney to represent him at arbitration, all parties must consent and that the respondenet must show that there are complex legal issues at hand which the employee cannot be reasonably expected to argue by himeself;
4.In the third instance the CMMa is an alternate dispute resolution agency. The reason we have alternate dispute resolution agencies is becuase we don't what matters that could otherwise be resolved be escalated to the court system where attorneys and advocates are required. The brainchild of the CCMA was to present a situation very much the same as the small claims court where attorneys are not allowed. However in abitration if there are indeed complex legal questions , consent of all parties and the need to argue case law, a commissioner will in all probability allow legal representation.
I'm really hoping that this puts things in perspective!

[Dave A]

In our experience we have only been refused to represent an employee on one occasion and this was subsequently over ruled on review.

I have faith in Anthony's experience of these things. On the flip side Vanash presents relevant "chapter and verse" evidence.

I see the challenge here really is not to establish which evidence is right or wrong, but to try to identify any possible contributing reasons why there is this apparent conflict in application.

Vanash mentioned many rule changes? is that it?
Or was it the nature of the employer in the cases Anthony has represented the employee?

There is one "fiddle" worth mentioning - There are some employer representative associations (I'm thinking of SEESA in particular) which really exist to ensure the employer is represented by a labour lawyer, and the nature of the rules can't prevent it. However, in such a position I could easily see a commissioner allowing legal representation for the employee to balance the equation... and that would seem fair enough i.m.o.