02/20/2017

Representation at the CCMA – anyone can represent you as long as the Commissioner uses his discretion to allow it.

Introduction
I have represented both the employer and employee at the CCMA and other Bargaining Councils and saw how unfair Rule 25 of the CCMA Rules could be in respect of representation, leaving both the Employee and Employer without their choice of representative to manage and lead their own case although they do not have the required skills for arbitration.  This situation will change in light of a recent decision by the court in The Casual Workers’ Advice Office and Others v CCMA and Others.

Principle:
On a proper interpretation of CCMA Rule 25 read with Rule 35 and the LRA, a commissioner has a discretion to authorise any party to CCMA proceedings to be represented by any other person on good cause shown.

Facts:
The Casual Workers Advice Office (CWAO) and others took court action against the CCMA to remove a rule that they said denies workers their rights. Rule 25 of the CCMA states that only an office bearer, official or member of a registered trade union or a legal representative may offer workers representation at the CCMA. But according to StatsSA 70% of workers do not belong to a trade union. So if you don’t belong to a trade union and you can’t afford a lawyer, you’re on your own. Many workers rely on community advice offices for information and advice about enforcing their rights, but can’t be represented by them because they are not lawyers or unions. What is perhaps even more bizarre is that workers are even prohibited from representing each other.

The argument of CWAO is that the CCMA is supposed to protect and uphold the rights of workers but Rule 25 prejudices the rights to a fair hearing of the vast number of workers who do not belong to a trade union and cannot afford a lawyer. The rule therefore prevents the CCMA from fulfilling its function of resolving disputes expeditiously and inexpensively. CWAO argued that in order to properly access their rights, workers need representation in proceedings before the CCMA. They should be allowed to be represented by either one of the hundreds of community advice offices around the country or one or more fellow-employees.

The Labour Court issued an order declaring that a commissioner has a discretion to authorise any party to CCMA proceedings to be represented by any other person, on good cause shown. The order means that CCMA commissioners are now obliged to exercise a discretion to allow other parties to represent workers during hearings. The Court gave the CCMA ten days to issue a practice notice to all its commissioners outlining how the right should be exercised, which has since happened.

Extract from the judgment:
It is declared that, on a proper interpretation of Rule 25, read with rule 35 of the CCMS rules and the provisions of the Labour Relations Act 66 of 1995, a commissioner has a discretion to authorise any party to CCMA proceedings to be represented by any other person, on good cause shown.
The CCMA is directed to file a practice note with this court within ten court days directing commissioners that they have a discretion in terms of paragraph 2 of this order and setting out guidelines for the manner in which that discretion should be exercised. Such directive shall make provision for the discretion to be exercised, in appropriate circumstances, to permit representation by community advice offices registered in terms of the Non Profit Organisations Act 71 of 1997.

Conclusion
At the time of writing this article the practice note has not been issued by the CCMA yet to give direction to how this discretion is to be exercised, but the words of the Court is clear, any party can be represented by anyone on good cause shown.  In anticipation of the practice note the interest of justice is suggested as good cause to offer as an argument.  The move by the court to give this power to the commissioners is lauded as it will bring justice and fairness to the arbitration room.

Deon Louw