Estimated reading time: 6 minutes
Receiving a referral from the Commission for Conciliation, Mediation and Arbitration (CCMA) can place an employer in an unfamiliar dispute-resolution process. One question that may arise is: Who can represent an employee at the CCMA?
The answer depends largely on whether the matter is at the conciliation or arbitration stage. The CCMA Rules, particularly Rule 25, regulate who may represent parties during CCMA proceedings.
Understanding these rules can help employers know what to expect and prepare accordingly.
Understanding Conciliation and Arbitration
The CCMA was established in terms of the Labour Relations Act 66 of 1995 (LRA) to perform functions that include conciliating workplace disputes and arbitrating certain disputes that remain unresolved.
Conciliation is generally the first stage. A commissioner assists the parties in attempting to resolve the dispute by agreement.
If the dispute remains unresolved, it may proceed to arbitration or, depending on the type of dispute, referred to another forum such as the Labour Court. At arbitration, the commissioner considers evidence and arguments before issuing a binding award.
The distinction is important because the rules governing representation differ between these stages.
Who Can Represent an Employee at Conciliation?
At conciliation, an employee may appear in person.
If the employee is a member of a registered trade union, Rule 25 allows qualifying representatives of that trade union, including a member, office-bearer or official, to represent the employee.
A legal practitioner or candidate attorney does not ordinarily have a right to represent an employee during conciliation.
Similarly, a friend, family member, labour consultant or other person who does not qualify under Rule 25 cannot automatically represent the employee simply because the employee would prefer them to do so.
This means that an employer should not assume that everyone accompanying an employee to conciliation is entitled to act as that employee’s representative.
Who Can Represent an Employee at Arbitration?
Representation is broader at arbitration.
Subject to Rule 25, an employee may appear personally or may generally be represented by:
- A person who would qualify to represent them at conciliation, such as an eligible representative of their registered trade union;
- A legal practitioner; or
- A candidate attorney.
However, legal representation is not automatic in every arbitration.
In particular, where the arbitration concerns the fairness of a dismissal relating to an employee’s conduct or capacity, legal representation is restricted. Rule 25 also applies restrictions to certain disputes referred under the Basic Conditions of Employment Act.
In these matters, legal representation may be allowed where the commissioner and all the other parties consent, or where the commissioner concludes that it would be unreasonable to expect a party to deal with the dispute without legal representation.
The commissioner considers factors such as the legal and factual complexity of the dispute, the public interest and the comparative ability of the parties or their representatives to deal with the matter.
The courts have also considered the application of these restrictions. In Fraser Alexander (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others, the Labour Court again considered Rule 25 and representation during CCMA proceedings.
Can Someone Else Represent an Employee?
A person who does not ordinarily qualify under Rule 25 does not automatically have the right to represent an employee.
However, Rule 25(6) allows a commissioner, following an appropriate application, to permit a person who would not ordinarily qualify to represent a party at arbitration.
The commissioner must consider relevant factors, including the need for representation, the ability of the proposed representative, fairness, possible prejudice to the other party and the efficient resolution of the dispute.
The decision ultimately rests with the commissioner.
What If an Employer Questions the Employee’s Representative?
If there is a legitimate question about whether a representative is entitled to appear, the commissioner determines the issue.
The commissioner may require the representative to provide information or documentation establishing their right to represent the employee, such as proof of trade union membership or authority to act.
Employers should therefore raise genuine concerns appropriately and allow the commissioner to determine whether the representative meets the requirements of Rule 25.
Why Employers Should Prepare Properly
Regardless of who represents the employee, proper preparation remains essential.
In an unfair dismissal dispute, an employer may need to demonstrate that there was a fair reason for the dismissal and that a fair procedure was followed in accordance with the LRA. Following the correct disciplinary process before a dispute arises can therefore be critical to an employer’s ability to defend its decision.
Relevant evidence may include employment contracts, workplace policies, disciplinary records, investigation documents, attendance or performance records, correspondence and other documents relating to the dispute.
Employers should also identify relevant witnesses and understand the issues in dispute before attending arbitration. Good preparation can help the employer present its case clearly and respond effectively to the evidence presented by the employee or their representative.
Clear procedures, consistent management and reliable records can also help reduce the risk of CCMA disputes escalating in the first place.
How SEESA Assists Employers
SEESA provides South African employers with practical labour law support throughout the employment relationship.
Our Labour Law specialists assist employers with employment documentation, workplace policies, disciplinary processes, dismissals, workplace disputes and preparation for CCMA proceedings.
Where appropriate, SEESA can also support and represent employers during CCMA proceedings in accordance with the applicable legislation and CCMA Rules.
Facing a CCMA matter? Contact SEESA for employer-focused assistance with disciplinary matters, dismissals, workplace disputes and CCMA proceedings.
Frequently Asked Questions
Not in every case. Legal practitioners and candidate attorneys are generally not permitted to represent employees at conciliation. At arbitration, legal representation is generally allowed, but restrictions apply in certain disputes, including dismissal matters relating to conduct or capacity.
Yes. An employee who is a member of a registered trade union may generally be represented by a qualifying member, office-bearer or official of that trade union, subject to the requirements of Rule 25 of the CCMA Rules.
Not automatically. Friends, family members, labour consultants or other third parties do not generally have an automatic right to represent an employee. In certain arbitration proceedings, a commissioner may permit another person to act as a representative following an appropriate application.
Yes. If there is a legitimate concern about whether a person is entitled to represent the employee, the employer may raise the issue with the commissioner. The commissioner will determine whether the representative meets the requirements of the CCMA Rules.
Where legal representation is restricted, the CCMA commissioner determines whether it should be permitted. The commissioner may consider factors such as the complexity of the dispute, legal questions involved, the abilities of the parties or their representatives and the interests of fairness.