Articles

Mind if I bring in my lawyer?

Business Law & Tax Review May 2009
By Nicole Chetty

In labour law legal representation is not permitted in arbitration proceedings where a party is dismissed for misconduct and incapacity. However, legal representation can be permitted during arbitration with the consent of the parties and the arbitrator. The reasoning for not affording parties the right to legal representation in arbitration proceedings is meant to facilitate an effective process which should expedite the finalisation of an arbitration.

Commission of Conciliation, Mediation and Arbitration (CCMA) rule 25 provides that parties may appear at arbitration hearings in person or may be represented by:

• A legal practitioner;
• A director or employee of either party or, if a close corporation, by a member thereof; or
• A member; office bearer or official of an employees' registered trade union or in an employer's registered organisation.

This rule excludes the right to legal representation where matters relating to disputes of dismissal for incapacity and misconduct are concerned. A contentious issue with regard to the afore-mentioned rule is the fact that employees are entitled to representation by a union official. This may be unfair due to the fact that the union official may possess knowledge pertaining to law in instances where he has several years’ experience. This is likely to be detrimental to the unrepresented party who has minimal knowledge of the law. In this regard, rule 25 has also been interpreted to exclude the representation of candidate attorneys, labour consultants, academics, legally qualified paralegal officers and admitted attorneys and advocates who are not on the roll of practitioners.

In Netherburn Engineering CC t/a Netherburn Ceramics v Mudau & Others, the Labour Court permitted legal representation in the following circumstances:

• Where the commissioner and all other parties to the matter mutually consent to legal representation.
• The commissioner has exercised his discretion by duly considering the following aspects: the nature of the questions of law raised by the dispute; the complexity of the dispute; the public interest; the comparative ability of the opposing parties or their representatives to deal with the matter.

In the Netherburn Ceramics case, the CCMA commissioner issued an award in favour of the employee after he refused the employer's application for legal representation. The employer took the matter on review. On review, the employer contended that the commissioner was biased and failed to show any rational basis for prohibiting legal representation. The court held that the commissioner failed to consider the predicament in which the employer had been placed due to his denial of legal representation. The court also held that the denial of legal representation is not an infringement of one's right to just administrative action as alleged by the employee.

Further, the court also held that the failure to afford an administrative tribunal the discretion to permit or deny legal representation is inconsistent with common law and the constitution.

In Joseph v Standard Bank of SA legal representation was refused because the commissioner held that any disadvantage to a lone employee may be remedied by the arbitrator playing a more interventionist role; where parties are not legally trained the commissioner should be more lenient in applying the rules of evidence, and should assist the parties by explaining the process in detail.

In a fairly recent judgment where the applicant had been dismissed for misconduct due to accepting a bribe in the form of a motorbike from a service provider of the employer and subsequently made an application for legal representation, the court considered the following factors when applying its discretion: the fact that the applicant was well educated, had approximately 20 years in business and had attended some practical training in labour law, had presided over disciplinary matters and was well spoken.

The court found that these factors did not justify the granting of legal representation. The applicant’s request to permit legal representation was consequently dismissed.

In a judgment contrary to the above, the court permitted legal representation relating to a dismissal for incapacity. In Steyn v SAA the employer contended that the employee should be prohibited from obtaining legal representation as the applicant was the wife of an attorney and thus the relative abilities of the parties would be skewed in favour of the applicant.

The court ruled that the applicant should be permitted legal representation as she would be disadvantaged if she had to represent herself, while the employer had a representative with considerable experience in arbitration processes. The commissioner had further taken into consideration the fact that the reasons for the applicant's incapacity were complex in nature and therefore, only legal representation would result in equality in the scales of justice.

Parties should be entitled to legal representation in arbitration proceedings based on the fact that legal practitioners serve as a support mechanism for both the commissioner and parties.

John Grogan, a renowned author of several labour law publications is of the opinion that the CCMA rule 25 (1) may still be attacked on the basis of irrationality and common law, and if the dispute regarding the right of parties to legal representation in arbitration proceedings is approached with caution, the rule may eventually be repealed to afford parties the right to legal representation in arbitration proceedings to make it consistent with the principle of equality enshrined in the constitution.

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