Legal representation at the CCMA

Parties do not have an absolute right to legal representation in all arbitration proceedings before the CCMA.

Source: Jan Stemmett, Councillor Law Society of Northern Provinces

Parties do not have an absolute right to legal representation in all arbitration proceedings before the CCMA.
 
In the only case that the constitutionality of the exclusion of legal representatives from arbitration proceedings at the commission for conciliation, mediation and Arbitration (CCMA) has ever been challenged, the Labour Appeal Court (LAC) has now confirmed that the power of CCMA Commissioners to deny legal representatives the right of appearance in CCMA arbitration proceedings concerning dismissal for misconduct and incapacity, is not in conflict with the Constitution or the common law.
 
In Netherburn Engineering CC t/a Netherburn Ceramics v Modau NO & others (2009) 30 IJL 269 (LAC), the decision of the Labour Court (LC) five years earlier, has been confirmed.
 
In support of an argument that parties have an “absolute right” to legal representation in all arbitration proceedings before the CCMA, including those concerning dismissals for misconduct and incapacity, the company submitted that the restriction on legal representation infringed the constitutional right to equality, that the provision was irrational and that it was in conflict with the right to fair administrative action. The full bench of the LAC rejected these arguments, finding that the restriction did not infringe the right to equality because arbitrations concerning matters, in respect of which legal representation was allowed as of right, were distinguishable, because these matters were generally more complex.
 
Dismissals for misconduct and incapacity account for more than 80% of the CCMA’s heavy case load. The Court found that there was accordingly good reason to allow for the exclusion of Legal Representatives from such disputes. The need to avoid the technicalities and delays normally associated with the involvement of legal representation, was in accordance with one of the main objectives of the Labour Relations Act of 1995 (LRA), namely to resolve disputes inexpensively and swiftly. Commissioners have discretion to decide when legal representation should be allowed. If parties feel that a matter is too complex for CCMA, they can apply for the matter to be transferred to the LC, where legal representation is automatically allowed.
 
The LAC also rejected the argument that the denial of legal representation conflicts with the right to fair administrative action, because not even the PAJA, which regulates the constitutional right to a fair administrative action, confers an absolute right to legal representation before administrative tribunals.
 
The LAC found that section 140(1) of the LRA (now embodied in a footnote to CCMA Rule 25) accords with the Constitution and the common law, neither of which confers an absolute right to legal representation in administrative bodies. The company could not argue that its right had been unreasonably limited, because there was no right to limit.
 
The employer party thereafter referred the matter to the Constitutional Court. In Labour Law Sibergramme 2/2009, Dr John Grogan expressed the view that the Constitutional Court would probably agree that the qualified exclusion of lawyers from statutory arbitrations concerning misconduct and incapacity dismissals, is constitutionally compliant, given the sentiments expressed in Sidumo & Another v Rustenburg platinum Mines Ltd & other [2007] 12BLLR 1097 (CC).
 
The Constitutional Court, in the matter of Netherburn Engineering CC t/a Netherburn Ceramics v Modau NO & others [2009] ZACC 10, in a judgment dated 1 April 2009, declined to decide the constitutionality of the right to legal representation. The Court found that although the issue raises a constitutional question, it was not in the interest of justice for the Court to entertain the application at this stage. Section 140(1) was repealed nearly seven years ago and replaced by CCMA Rule 25(1) which alludes in a footnote to the repealed section, but is not in identical terms. The Court expressed the view that it was extremely unlikely that determining the constitutionality of the repealed section 140(1) would have any effect on pending proceeding. Since Rule 25(1) is not identical to section 140(1), such a determination “will not be determinative of a challenge to Rule 255(1)”.Determining the constitutionality of section 140(1) will therefore serve no purpose.
 
The Constitutional Court expressly refrained from commenting on the constitutional point relating to legal representation before the CCMA, because it would not be in the interest of justice to determine the issue, in view of the fact that there was, in all probability, no live dispute which would be affected by such a determination. The Court noted that “the question of the constitutionality and meaning of CCMA Rule 25 thus stands over for another day”.
 
The decision of Labour Appeal Court in respect of section 140(1) therefore stands and the constitutionality of CCMA Rule 25 is yet to be decided.
 
The Labour Law Committee of the LSSA declined to became involved in Netherburn’s review application when it was launched, because section 140(1) had been repealed by then. Whether it is feasible to challenge the constitutionality of CCMA Rule 25(1) may be doubtful in light of the decisions of the LAC in the Netherburn case and the Constitutional Court in the Sidumo case.
 
This does not mean, however that Commissioners are free to exclude lawyers from such arbitrations as and when they please. Although the LAC’s judgment in Netherburn does not say as much, when confronted with applications for legal representation, Commissioners must still apply their minds to the considerations set out in Rule 25(1) (c) of the CCMA Rules. However, if a party’s lawyer is refused right of appearance, that party would probably be entitled to a postponement (“a breather to be primed by his attorney”, as stated in the Labour Court case) and to take the Commissioner’s decision on review at the conclusion of the arbitration proceedings.