Not many people are comfortable appearing at the CCMA without legal representation to face the claims of often hostile employees and aggressive employees. An employer company will frequently send its HR manager or another seemingly suitable candidate to face the music and appear on its behalf. Some are familiar with the process and confidently present their company’s case. Most are not. Many are unfairly blamed by their companies for “blowing the case single handedly” when the award is against them.

The stakes are higher for all concerned when the employee referring a dispute is or was a senior person at the employer. This occurred in a recent case involving the Road Accident Fund (“the RAF”) as the employer and the claimant was the previous chief operations officer of the RAF . He had been recently dismissed by the RAF for misconduct. The RAF went to considerable expense (naturally utilizing tax payers’ funds) to set up a disciplinary hearing which the employee attended. Senior Counsel was engaged to chair the hearing. Senior Counsel was retained to prosecute the hearing. A large firm of labour law attorneys were retained also to prosecute the hearing.

After his dismissal the employee approached the CCMA claiming that his dismissal was unfair.

The dispute was set down for arbitration. The RAF attended with the same legal team consisting of Senior Counsel and the labour law attorneys. They applied for permission to have legal representation at the arbitration. It must be noted that in dismissals for misconduct, a party is not entitled as a right to be represented by a legal practitioner. This can be done if the Commissioner and the parties consent or if the Commissioner concludes, after considering specified factors, that it is unreasonable to expect a party or the parties to deal with a dispute in the absence of legal representation.

In the RAF’s application, the Commissioner believed otherwise. He refused legal representation. Each of the RAF and the employee would have to represent themselves. Some time passed and the RAF decided to bring an application to the Labour Court to stop the CCMA arbitration from proceeding until the Commissioner’s decision to refuse legal representation had been taken on review and that review process had been completed.

We should add that applications for review in the Labour Court usually take many months to finalise. If the RAF succeeded with its application, the employee’s claim in the CCMA would have been successfully blocked for perhaps a year or even more.

The Labour Court did not accept that the RAF’s application was urgent. The primary reason put forward for urgency was that their Senior Counsel was busy with another matter and could not consult with them on the present case sooner. It is evident that the Labour Court was not impressed with this argument at all. The Learned Judge stated that this explanation was unacceptable. He questioned why everything should be stopped until the Senior Counsel became available. He pointed out that several senior labour Counsel frequent the Labour Court on a regular basis. It was unacceptable that proceedings get delayed because a particular Counsel was not available .

The Labour Court indicated that the application should be struck from the roll on the basis of it not being urgent. However it went further. The Labour Court stated that the application to stay the arbitration would not succeed in any event. The reason for this is that the Labour Court should be most reluctant to intervene in proceedings which have already commenced in the CCMA and effectively interrupt such proceedings. In other words “block” those proceedings as intimated above.

If the RAF has a problem with the ultimate outcome of the CCMA proceedings and it meets the necessary requirements, it should approach the Labour Court once those proceedings have been completed.

The Court reiterated that the Labour Relations Act intends to achieve simple, quick, cheap and informal proceedings in relation to the adjudication of labour disputes. The aim is to bring about the expeditious resolution of labour disputes. Such disputes by their very nature require speedy resolution.

In contrast to this, the Court pointed out, the present matter involving the RAF had already taken a number of convoluted and time consuming turns having had to deal with the issue of condonation and now legal representation.

The RAF contended that the issues in the arbitration were complex in support of its application for legal representation. The RAF stressed that it was a publicly funded body and the issues were of public interest. In response the Court found that the issues were not complex at all. It stated that it is public knowledge that the RAF had approached the National Treasury on a regular basis for a bail out. The Court clearly expressed its displeasure at the conduct of the RAF in incurring great costs (ultimately for the tax payers’ pocket) in employing Senior Counsel to chair the disciplinary hearing. It had then also at great cost employed a labour law firm and Senior Counsel to prosecute the disciplinary hearing on its behalf. It then persisted in proceeding with the same legal team, again at great cost to the tax payer, and persisted at the CCMA and the present application with Senior and now Junior Counsel as well. What is a simple dispute had become a frightfully expensive exercise for the RAF and of course for the tax payer.

In consequence, the RAF’s application was dismissed. This no doubt meant that the arbitration sought by the employee proceeded timeously.

We feel that the following points arise from this decision :-

  • We cannot lose sight of the fact that labour dispute proceedings, particularly in the CCMA, are intended to be dealt with in a simple, straight forward and expeditious manner;
  • Notwithstanding the seniority of the employee or employees involved in labour disputes at the CCMA, employers need to take care and to be circumspect in taking it for granted that they will be entitled to rely on legal representation;
  • The commonly used tactics of obstruction and counter attack in litigation do not necessarily sit well in the CCMA.