CCMA - questions

[sterne.law@gmail.com]

The employee must get the award stamped by CCMA, then a writ is issued and the sheriff must serve. The sheriff can then attach your goods.
If the award is re-instatement, the employee gets the award made an order of court, thereafter an application for contempt of court.

[Just Gone]

So therefore if we have already had a ccma meeting, signed and sealed by both parties for the employee to come back, which he failed to do then he is in fact in breach of the "contract" . How the hell does he then get away with going back to the CCMA and opening another case against me 6 months later !!! ? .... where I now have to appear AGAIN in front of the ccma but with a different case number, but in fact the same case ?

[Citizen X]

Yes, I appreciate your frustration. What you have here is what we call a "professional plaintiff." Now, The CCMa only institute costs at as a last resort where they can see that the applicant is wasting resources. raise those facts you've raised here to the CCMA.

[AmithS]

Thanks to everyone for all the valuable input.

Now here is the new development,

I received a notice from the bargaining council "For the food retail, restaurant, catering & allied trades" notifying me that I need to attend a "CON\ONLY" meeting with regards to the same matter.

I received both within a space of 2 days (CCMA & BC), my thinking at the moment are that the person in question has submitted to both places!!!!!

Additionally I have picked up through the ccma notice LRA 11.7 faxed to me that the person is being assisted by an attorney who is a relative as the attorney firm and person carry the same surname (They are listed as an alternative contact)

What does 1 do in this situation?

[IMHO]

What you have here is what we call a "professional plaintiff."

the person is being assisted by an attorney who is a relative

Well spotted Vanash.

[Citizen X]

Okay, if the employee is assisted by an assited you can rightfully argue that there no no complex legal questions to be argued here. The only time the CCMa will allow an attorney to represent any party both employee and employer is that if the attorney can prove that there are complex legal questions to be addressed that either party cannot reasonably be expected to argue by themselves. On this note the sections that deal with rights to representation have been amended ad nauseum!

[Citizen X]

Your point of departure of objecting to an attorney representing the employee can be found in CCMA rule 25(also amended many times, this is how it currently stands.
1. At conciliation, the employee may only be represented by any member , office bearer or official of that party's registered trade union or registered employer's organisation;
2. At arbitration(and if it’s con arb, then the attorney will not be allowed to represent at conciliation but may be allowed to represent at arbitration if all parties consent and if there are complex legal questions to be addressed that the employee himself cannot be reasonably expected to argue);
3. Might I suggest, that at conciliation you definitely object to the employee being represented by an attorney, the CCMA will accept your object and preclude the attorney from speaking at conciliation;
4. Then at arbitration you object to the attorney representing the employee on the following basis: 1:You do not consent; 2: There are no complex legal issues involved; the fact that the employee has gone both to the CCMA and Bargaining council can count to your favour, don't default yourself, go to both hearings and argue that both organisations cannot simultaneously hear the same matter, the employee must chose between the two

The following is how the law stands on this issue:

25 Representation before the commission

(1) (a) In conciliation proceedings a party to the dispute may appear in person or be represented only by-
1) a director or employee of that party and if a close corporation also a member thereof; or
2) any member , office bearer or official of that party's registered trade union or registered employer's organisation.

(b) In any arbitration proceedings, a party to the dispute may appear in person or be represented only by:
1) a legal practitioner ;
2) a director or employee of that party and if a close corporation also a member thereof; or
3) any member , office bearer or official of that party's registered trade union or registered employer's organisation.

(c) 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, the parties, despite subrule (1) (b) are not entitled to be represented by a legal practitioner in the proceedings unless-
1) the commissioner and all the other parties consent;
2) the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering-
(a) the nature of the questions of law raised by the dispute ;
(b) the complexity of the dispute ;
(c) the public interest; and
(d) the comparative ability of the opposing parties or their representatives to deal with the dispute .

2) If the party to the dispute objects to the representation of another party to the dispute or the commissioner suspects that the representative of a party does not qualify in terms of this rule, the commissioner must determine the issue.

3) The commissioner may call upon the representative to establish why the representative should be permitted to appear in terms of this Rule.

4) A representative must tender any documents requested by the commissioner in terms of subrule (3), including constitutions, payslips, contracts of employment, documents and forms, recognition agreements and proof of membership of a trade union or employers' organisation.

5) [Reg 25 corrected by GN R1748 of 5 December 2003 (as corrected by GN R530 of 30 April 2004).]

[AmithS]

Thanks Vanash Naick, you have been extremely helpful.

I am meeting with the bargaining council designated agent on Monday to sort out my fees for the year. So I am also going to ask her about this situation at the same time and see what her interpretation is.

The only thing that worries me is that in the ccma LRA 11.7 document the person has asked for a translator to be present for 1 on the African languages. I am hoping they don't try and sneak the lawyer in under the pretext of being a translator

[Citizen X]

It's my pleasure,
No, they can't, the interpretor works for the CCMA. Whatever you say in english is translated word for word, whatever the employee says in the said language the interpretor translates word for word. Remember to emphasize that the applicant is attempting to mislead the CCMA and does not have a bone fide cause of action

[AmithS]

So even if they say he is a translator, I can object and say that if the person needs a translator they must use the ccma translator?

Am I correct in saying this?