The High Court in Pretoria has declared a CCMA rule barring legal representation for employees during arbitration as unconstitutional, the Law Society of SA said on Wednesday, 17 October 2012.
Rule 25(1)(c) allowed legal representation in all arbitration’s except where they concerned dismissals for misconduct or incapacity. Such an employee was not allowed legal representation at the Commission for Conciliation, Mediation and Arbitration unless the commissioner and all other parties to the arbitration agreed.
The matter was first brought to the court last year by the Law Society of the Northern Provinces, which represents attorneys in Gauteng, Mpumalanga, North West and Limpopo.
Judgment was delivered Thursday, 11 October 2012.
Evidence before the court showed that 80 percent of arbitration’s before the CCMA were about whether a dismissal for misconduct was fair.
What this means for employers is that where an employee is represented by an attorney:
- Settlements will be more likely prior to arbitration as attorneys will explore that possibility as a matter of course; and
- Where arbitration is inevitable, proceedings will often be more organised and the essence of the dispute will be argued rather than the many superfluous issues brought forward at the hearing by the employee; and
- There is also the greater possibility that employees who take advice in circumstances where they have a weak case will be advised not to continue by their attorney; and
- Employees, if faced with increasing legal costs, are likely to settle and / or withdraw when they have a weak case.
If you have any concerns or questions regarding matters that have been referred to the CCMA, please contact us as follows:
Tel: (033) 266 6170
Fax: (033) 266 6175
Rob McCarthy: (083) 274 1232