Paragraph 25(1)(b) allows an employee to be represented by a lawyer or trainee lawyer through arbitration. However, this rule has its exception. The submission of such an application does not automatically mean that an application will be accepted, since the CCMA Commissioner must then review the application and decide whether to allow the said lawyer to represent it. CcMA commissioners are reluctant to accede to such requests, believing that lawyers have a way to confuse contentious issues and unnecessarily prolong the process. The CCMA is expected to resolve disputes quickly. The CCMA is an institution that follows its own rules and guidelines. This means that the CCMA deals with various issues and is bound by the rules of the CCMA and the Industrial Relations Act. In some cases, legal representation by the CCMA is not permitted. To better understand this concept, it is important to know what legal representation is and what it is. The above serves only to provide a brief overview of the general remarks on representation at the CCMA. If you are participating in an application before the CCMA, it is recommended that you consult a suitably qualified and experienced labour lawyer to ensure that you are informed and advised on the various exceptions to the positions described above. If the plaintiff and the defendant agree that one of the parties may have legal representation, the Board will not reject it.
There is a clear concern that the right to be represented by legal representatives limits the CCMA`s ability to operate within these parameters and unnecessarily complicates and prolongs the proceedings. If the Commissioner refuses legal representation and the aggrieved party believes that he or she should not have refused legal representation, the aggrieved party may review the matter. 4. Comparability of the applicant and the respondent: When a member compares the ability of the plaintiff and the defendant to deal with their affairs adequately. If the Commissioner is of the opinion that the applicant or defendant will not be able to properly handle his or her case, he or she decides that legal representation is permitted. The Conciliation, Mediation and Arbitration Commission (CCMA) is a forum where labour disputes can be resolved quickly and efficiently with a minimum of legal formalities and procedures. Law Society of the Northern Provinces v Minister of Labour and Others JS61197/11 provides guidance and shows that changes to the CCMA are to be expected. This case, decided by the Supreme Court of Pretoria, concluded that Rule 25(1)(c) of the CCMA Rules is unconstitutional because the restrictions on legal representation imposed by the CCMA Rules cannot constitute an appropriate or justified restriction on the constitutional rights of the parties, in particular Article 33 of the Constitution, which provides for rights of equitable administrative action. Legal representation may be sought by termination accompanied by an affidavit prior to the arbitration hearing. The legal representative may also ask the Board to represent his or her client on the day of the hearing.
It is important that lawyers are fully prepared for the reasoning of legal representation. The lawyer must be fully aware of the facts and be able to represent his or her case before the Commission. If a lawyer is not admitted to arbitration, the plaintiff or defendant will have to present the case himself. With respect to factor number 1, the nature of the legal issues raised, the Commissioner will determine whether there is an interpretation of the law, the necessary elements or definitions. If no interpretation is required, the Commissioner may rule against legal representation. The complexity of the dispute is determined by the dispute – most disputes pending before the CCMA are about misconduct and, in most cases, the specific crimes committed by the plaintiffs are not very complex. Here, too, the Commissioner should rule against legal representation. It is always best to consult with a lawyer about legal representation at the CCMA as you move forward. A party wishing to participate in the CCMA must ensure that they are well informed of their case. With respect to the comparability of the opposing party or its representatives, the Commissioner will consider who is arguing against whom. If both parties have lawyers, the Commissioner may grant such a request, but if it is a lawyer representing the applicant and arguing against the Industrial Relations Manager or the Human Resources Manager, the Commissioner will be less inclined to allow the same thing. According to the Constitution of the Republic of South Africa, everyone has the right to representation.
3. The public interest: While we recognize that the CCMA should not be too legalistic in deciding whether or not to authorize a legal representative, the CCMA will always keep in mind that the Constitution provides for legal representation and does not frivolously reject legal representation. Any party to the dispute may make a claim to the CCMA arguing that they should be allowed to be represented by counsel and that they should justify or justify why representation should be allowed for the reasons set out above. This means that the matter will be dealt with by the Commission during the arbitration and both parties may be represented by a lawyer. The problem would only exist if the defendant and the plaintiff do not agree that legal representation is allowed. Legal representation is not automatically permitted in the event of fault and incapacity for work. A lawyer who wishes to represent his client at the CCMA must apply to the Commission for authorization to represent his client. Legal representation occurs when a lawyer with the right to appear before the Supreme Court, who practises as a lawyer, has the right to represent a client.
In this case, it would be a question of representing an employer or the employee at the CCMA. However, Rule 25 of the CCMA regulates the right to be represented by a lawyer. This right is restricted if the dispute in which the arbitration is conducted concerns the fairness of a dismissal and a party has asserted that the reason for the dismissal is related to the employee`s conduct or capacity.