CCMA - questions

[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.

[Citizen X]

I may be wrong, but I think that Anthony represented and argued his case so well on behalf of the employee, that the CCMA allowed legal representation.
Yes, the section dealing with representation have been amended at the very least 8 times over the past 7 years. I think sometimes we argue things based on experience, eg(made up example, not true, just for illustration). All the accused I represented were granted bail even though they had no fixed address.

The latin maxim, "audi alteram partem" really holds true, ther are two sides to a story..

Guys, just want to say that I'm a very easy person, "I'm easy like a Sunday morning," so please don't feel offended by the manner in which something I state may come across

[sterne.law@gmail.com]

I am not going to respond specifically, but will set out perhaps with more clarity.

Firstly,I did not state it as legal fact but quite clearly, based on actual events and actual representation of an attorney before the CCMA and other Dispute Resolution Agencies, what is almost always the reality, again based on real and actual experience. I would believe that the practical and real events are indisputable.

To be in perspective, my wife appears mainly for employees, and attends on average 3 arbitrations per week. Last year alone probably close to a hundred arbitrations. ONLY on one occasion was she refused representation, which decsion was overturned on review.
I can also be quite clear, that only on about 5 occassions was it required to submit strong argument. These were all situations where the employee had substantial experience or a degree. The rest of the time it was a fairly easy decision for the Commissioner to make.

The comparitive ability remains the key issue and as submitted earlier the employee is almost always at a disadvantage. The employer is normally a manager, more education than the employee etc,etc and on this basis alone the employee is allowed an attorney. In certain circumstances, again set out previously, the Commisioner is comfortable that the employee needs representation but feels the employer may be disadvantaged by not having an attorney, and adjourns the matter thus allowing the employer to seek counsel.

In terms of SEESA and other employer organizations, there is no doubt that the majority are formulated merely for representation rights by attorneys. This is a problem. There has been some argument that becuase the rules say NO attorneys, that even when as an employers organization member, they are still excluded. For obvious reasons, (an attorney objecting to an attorney would be non-sensical) I have never bothered to explore the argument.

The converse of the employer organization having an attorney, is if the Commissioner should be duty bound to adjourn and allow the employee an opportunity to seek counsel. This often occurs in the Joburg and Durban Labour Court, where the judge adjourns and sends the employee to get legal help. It is made possible as these two courts have a joint project between SASLAW and ProBono.Org whereby lawyers act on a probono basis in labour court matters, where the criteria is met.

[Citizen X]

Anthony, many thanks indeed for the clarification!