Labour Relations Act, 1995 (Act No. 66 of 1995)Commission for Conciliation, Mediation and ArbitrationRules for the Conduct of Proceedings before the CCMAPart Five : Rules that apply to conciliations and arbitrations and con-arbs25. Representation before the Commission |
| (1) |
| (a) | In conciliation proceedings a party to the dispute may appear in person or be represented only by— |
| (i) | if the party is an employer, a director or employee of that party and, in addition, if it is a close corporation, a member or employee of that close corporation; |
| (ii) | any member of that party’s registered trade union or registered employers’ organization or an office bearer or official as defined in the Act; |
| (iii) | if the party is a registered trade union, any member of that trade union or any office bearer or official as defined in the Act and authorized to represent that party; or |
| (iv) | if the party is a registered employers’ organization, any director or employee of an employer that is a member of that employers’ organization or any official or office bearer as defined in the Act and authourised to represent that party. |
| (v) | if a party is the department of labour, any employee or official of the department of labour. |
| (b) | Subject to paragraph (c), in any arbitration proceedings a party to the dispute may appear in person or be represented only by— |
| (i) | a legal practitioner; |
| (ii) | a candidate attorney; or |
| (iii) | an individual entitled to represent the party at conciliation proceedings in terms of sub-rule (1)(a). |
| (c) | If the dispute being arbitrated is referred in terms of section 69(5), 73 or 73A of the BCEA or is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee’s conduct or capacity, a party is not entitled to be represented by a legal practitioner or a candidate attorney in the proceedings unless— |
| (i) | the commissioner and all the other parties consent; |
| (ii) | the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering— |
| (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. |
| (d) | In any facilitation of large scale retrenchments as contemplated in section 189A(3) of the Act, a party may appear in person or be represented by: |
| (i) | if the party is the the employer, a director or employee of the party, and, if a close corporation, a member or employee of that close corporation; |
| (ii) | any member of that party's registered trade union or employers’ organisation or office-bearer or official as defined in the Act and authourised to represent the party. |
| (e) | No representation by a legal practitioner or candidate attorney shall be allowed in facilitations of large scale retrenchments as contemplated in section 189A(3). |
| (f) | No person representing a party in proceedings before the Commission in a capacity contemplated in sub-rule (1)(a) or (b), other than a legal practitioner or candidate attorney contemplated in sub-rule (1)(b)(i) and (ii), may charge a fee or receive a financial benefit in consideration for agreeing to represent that party. |
| (2) | If the party to the dispute objects to the representation of another party to the dispute or the commissioner suspects that the representative of a party does not qualify in terms of this Rule, the commissioner must determine the issue. |
| (3) | The commissioner may call upon the representative to establish why the representative should be permitted to appear in terms of this Rule. |
| (4) | A representative must tender any documents requested by the commissioner for the purposes of sub-rule (3), including constitutions, payslips, contracts of employment, documents and forms or recognition agreements and/or proof of membership of a trade union or employers’ organization. |
| (5) | Despite the provisions of sub-rule (1), a commissioner may exclude any person who is representing a party in any proceedings on the basis that they are a member of the same employers’ organization as an employer party, or a member of an employers’ organization that is a party to proceedings, if the commissioner, after enquiring into the matter and considering relevant representations, believes that – |
| (a) | the representative joined the employer’s organization for the purpose of representing parties at the Commission; or |
| (b) | the representative’s participation in the dispute resolution process— |
| (i) | would be contrary to the purpose of the Rule which is to promote inexpensive and expeditious dispute resolution in a manner that is equitable to all parties; |
| (ii) | is not in keeping with the objectives of the Labour Relations Act 66 of 1995; or |
| (iii) | may have the consequence of unfairly disadvantaging another party to the dispute. |
| (6) | Despite the provisions of this Rule, but subject to the provisions of sub-rule (1)(f), the commissioner may, on application brought in accordance with rule 31, allow a person not contemplated in sub-rule (1) to represent a party at arbitration proceedings before the commission, after considering— |
| (a) | whether it is unreasonable to expect the applicant party to deal with the dispute without representation, after considering the factors set out in sub-rule 1(c)(ii)(a) to (d); |
| (b) | the reason why a person contemplated in Rule 25(1)(b) cannot represent the applicant party, which includes affordability, if applicable; |
| (c) | the ability of the proposed representative to meaningfully represent the applicant; |
| (d) | whether the proposed representative is subject to the oversight and discipline of a professional or statutory body; |
| (e) | whether the proposed representative will contribute to the fairness of the proceedings and the expeditious resolution of the dispute; |
| (f) | prejudice to the other party; and |
| (g) | any other relevant factors. |