Can a labour lawyer represent you at the CCMA ?

The issue of legal representation at arbitration proceedings is an issue that often arises.

The question is whether legal representation is always permitted, and if it is not, under what circumstances legal representation is permitted.

The only limitation that is placed on legal representation at arbitration proceedings is when the reason for the dismissal is that of : a) misconduct or b) incapacity.

In those instances, if the arbitrator and all the other parties consent to legal representation, then legal representation is permitted, otherwise the presiding arbitrator has a discretion whether or not to allow legal representation.

In exercising that discretion, the commissioner will allow legal representation if the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation after considering certain criteria.

These criteria are the following :

a) the nature of the questions of law raised by the dispute;

(b) the complexity of the dispute;

(c) the public interest; and

(d) the comparative ability of the opposing parties or their representatives to deal  with the dispute.

In a judgment handed down by the Labour Court on 24 November 2023 [ Fritz v Transnet Port Terminals and Others (PR129/20) [2023] ZALCPE 25 ] the Court dealt with a situation where an employee applied for legal representation to be permitted at the arbitration, but the arbitrator refused to allow legal representation.

The employee lost the arbitration (where his dismissal was found to be fair), and the employee thus proceeded to apply to the Labour Court to review and set aside the decision by the arbitrator to have refused to allow legal representation, and as a consequence, to also then set aside the entire arbitration award.

The issue before the Court was whether or not the arbitrator should have allowed legal representation.

As already stated above, there are 4 matters for an arbitrator to consider in deciding whether to allow legal representation viz. the nature of the questions of law raised by the dispute; the complexity of the dispute; public interest, and the comparative ability of the opposing parties or their representatives to deal with the dispute.

The Court found in Fritz ( see above) that the arbitrator had only considered the employee’s knowledge of the policies on which his charges of misconduct were based, and that this was materially different from the ability to deal with the arbitration of the dispute. Fairness requires the ability of the parties or representatives to deal with the dispute being arbitrated to be similar.

The Court found that failing to consider the comparative ability of the parties to deal with the arbitration constituted a reviewable irregularity on the part of the arbitrator because there was a failure to take into account an essential step of the enquiry. This resulted in the arbitrator undertaking the enquiry in the wrong manner, and this justified having the decision reviewed and set aside.

In the result, the ruling on legal representation was set aside, and so too the arbitration award itself.

Whilst legal representation is not always permitted, the law allows for sufficient flexibility for it to be argued that a party should be entitled to have legal representation where the circumstances justify it.

Article written by Craig Berkowitz

Specialist Labour lawyer and

Acting Judge in the Labour Court of South Africa