Lawyers in the CCMA – John Grogan

It’s been a long time coming – about 15 years in fact. Finally, a court has ruled that the CCMA’s strange rule which allows commissioners to expel lawyers from arbitrations concerning dismissals for misconduct and incapacity is irrational, arbitrary, unjustifiable and unconstitutional.

About four years ago, a similar attack on the erstwhile section 141(1) of the Labour Relations Act 66 of 1995 (LRA), which was to the same effect, failed in the Labour Appeal Court (see Netherburn Engineering CC t/a Netherburn Ceramics v Madau NO & others [2009] 4 BLLR 299 (LAC)). The Constitutional Court declined to entertain a further appeal (Netherburn Engineering CC t/a Netherburn Ceramics v Madau NO & others [2009] 6 BLLR 517 (CC)).

But since then, that provision has been repealed and replaced and replicated in the CCMA rules.

The application was launched by the Law Society of the Northern Provinces and opposed by the CCMA and the Minister of Labour. Their defence did not impress the court.

Rule 25(1)(c) of the CCMA, made under section 115(2A)(k) of the LRA, provides that, in arbitrations before the commission concerning dismissals relating to employees’ conduct or capacity, the employee may not be represented by a legal practitioner unless the commissioner and the other parties consent, or the commissioner concludes that it is unreasonable for a party to deal with the dispute without legal representation, “having regard to the nature of the questions of law raised by the dispute its complexity, the public interest and the comparative ability of the parties or their representatives to deal with the dispute”.

The society contended that this violated its members’ constitutional right to exercise their profession. But to the court, the essential question was whether the rule was rational.

In Law Society of the Northern Provinces v Minister of Labour & others (North Gauteng High Court case no. 61197/11 dated 11/10/12, unreported (Tuchten J)), the court noted that the CCMA is a statutory body which is independent of the State, and which plays a central role in the dispute resolution scheme created by the LRA.

When commissioners are charged with arbitrating disputes, they are given fairly wide powers, including the power to subpoena witnesses, to place them under oath, and to enter the premises of employers to seize documents and interview witnesses. Persons appearing before the CCMA may also be convicted of contempt.

But while the exercise of all these powers is governed by law, commissioners are also enjoined to conduct proceedings in any manner they please and with a minimum of legal formalities. The court also noted that awards issued by the CCMA are final and binding, and not appealable.

But much as they may look like judicial officers, commissioners conducting arbitrations perform an administrative function. This is important, because in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), persons performing administrative functions must consider on a case-by-case basis whether affected persons should be accorded a right to legal representation. The rule had to conform to that requirement, and it had to be rational.

The court found that it is not. Legal practitioners have unrestricted access to the CCMA, except in cases involving dismissals for misconduct or incapacity. There is no restriction on the right of appearance of other recognised representatives.

The court accepted that while the rule was not required to be “perfect”, the CCMA was required to give reasons why the rule took the form it did. The rule’s rationality was to be assessed according to those reasons.

The reason advanced by the CCMA’s director was that the CCMA operates in a unique system that was agreed on by business, labour and government. The director also claimed that disputes concerning dismissals of individuals or groups (by far the majority of cases heard by the CCMA) are “less serious”.

The director also claimed that the system had operated to the satisfaction of the social partners for many years, and that what worked did not need fixing.

The court accepted that the view of the director could not be lightly disregarded. But the judge could not agree that dismissals were not “serious matters” – especially for the employees concerned.

The thread running through the CCMA’s submissions was that the presence of lawyers leads to time-consuming obfuscation. While this may well occur in some arbitrations, as it does in judicial proceedings to the judge, the answer was simple: appoint presiding officers capable of dealing with such conduct.

But the judge also pointed out that there was another side to the coin. Lawyers frequently conclude agreements which help to curtail litigation. If cross-examination is sometimes tedious, that is the price of a constitutional dispensation which accords persons a right to fair hearings.

Finally, the judge could not understand the logic, if any, behind giving lawyers an unrestricted right of access in most cases (including those arguably far less serious than dismissals), but limiting legal representation to two categories of dismissals.

The judge suspected, justifiably, that the restriction on legal representation in the CCMA was probably a compromise. However, when a compromise is converted into a regulation, as it was here, it must satisfy the constitutional requirement of rationality. A distinction based on an a priori view that matters are “not serious” is the essence of arbitrariness.

Finally, the judge pointed out that the PAJA enjoins administrators to consider allowing legal representation in both serious and complex cases. The sub-rule does not permit legal representation in cases which are not complex, however serious they may be. The sub-rule accordingly unlawfully abridged the applicable provision of the PAJA. Since the limitation was arbitrary, it could not be said to be reasonable or justifiable.

CCMA sub-rule 25(1)(c) was accordingly declared unconstitutional and invalid, but the order was suspended for 36 months to allow the CCMA to formulate a new rule.

In the meantime, the rule holds, but commissioners will no doubt be aware that if they refuse legal representation, they are acting under a rule which is in principle unconstitutional.

This was first published as a Snap Issue of the Labour Law Sibergramme.  Paying subscribers to the Sibergramme receive Grogan’s incisive comments on current cases and issues twice monthly.  To subscribe, email subs@siberink.co.za or visit our website by clicking here.

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