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Unlike in civil and criminal proceedings, labour litigation at the Commission for Conciliation, Mediation and Arbitration (CCMA) does not always allow the representation of a party by a legal representative. It is thought that the reason for this is so that there is a ‘level playing field’ when the matter is being adjudicated. In this article we will discuss instances where legal representation is permitted or disallowed during CCMA proceedings.

When a labour dispute has been successfully referred to the CCMA for resolution, should there be no issues to be determined first as points in limine (preliminary issues) such as condonation, jurisdiction, joinder or substitution, Conciliation is usually the first session that is held. This is a less formal procedure whereby the Commissioner of the CCMA allocated to assist in the dispute, facilitates a discussion between the parties in pursuit of settling the matter. Legal representation is not allowed during the Conciliation stage and a party may only be represented by a member of a trade union, an employer’s organisation, an office bearer of the company, director etc, as per Rule 25 (1) (a) of the Rules for the Conduct of Proceedings Before the Commission for Conciliation Mediation and Arbitration.

Where the dispute remains unresolved/unsettled after the Conciliation procedure, the CCMA Commissioner issues what is known as the Certificate of Non-Resolution, whereafter either of the parties involved in the dispute may refer the matter for Arbitration within 90 days.

136. Appointment of commissioner to resolve dispute through arbitration

(1) If this Act requires a dispute to be resolved through arbitration, the

Commission must appoint a commissioner to arbitrate that dispute, if-

(a) a commissioner has issued a certificate stating that the dispute remains

unresolved; and

(b) within 90 days after the date on which that certificate was issued, any

party to the dispute has requested that the dispute be resolved through

arbitration. However, the Commission on good cause shown, may

condone a party’s non-observance of that timeframe and allow a

request for arbitration filed by the party after the expiry of the 90-day

period.

Arbitration is a formal procedure, whereby the CCMA Commissioner is firmly in control of the proceedings. This is where evidence is adduced, arguments are raised, witnesses (if any) are cross examined, before the Commissioner hands down a decision that is binding on the parties, within 14 days as per section 138 (7) of the Labour Relations Act 66 of 1995 (LRA).

Legal representation at Arbitration proceedings is generally allowed, but not automatic. Rule 25 (1) (b) and (c) are instructive on this aspect, providing that a legal practitioner, candidate legal practitioner or a party referred to in terms of 25 (1) (a) may represent a party to the dispute unless “the dispute is referred in terms of 69 (5), 73 or 73A of the BCEA or 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.” Under these circumstances, legal representation may be permitted if the Commissioner and other parties consent, if the complexity of the matter, the ability of the parties to deal with the matter or that the matter is of public interest, requires so. Consequently, the provision affords a Commissioner some discretion with regard to the representation of parties in certain instances, a position which was upheld by the Supreme Court of Appeal in CCMA v Law Society, Northern Provinces 2013 (11) BLLR  1057 (SCA). 

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