REPRESENTATION AT LABOUR DISPUTES
LABOUR disputes do not normally require representation, but it would be allowed. Many employers hold inquiries in terms of their own rules.
Their disciplinary code might allow for external representation (in many instances attorneys represent both the employer and employee).
The norm is for only internal representation. In other words, an accused worker may request to have another staff member represent them or demand that a shop steward represent the employee (if there is an active trade union). If the accused employee is a shop steward, then the union would send an official to represent him/her.
If there are consultations on a possible dismissal for operational requirements, the employers normally encourage external representation but there is nothing stopping staff obtaining advice from trade unions, labour lawyers and/or any other expertise.
Hearings for ill health should always allow external medical personnel to testify on behalf of the worker. If there is a question about competency, the employee may bring in experts to challenge the claims.
Challenges to the outcome and recommendations normally go to an external body such as the Commission for Conciliation, Mediation and Arbitration (CCMA) and/or a Bargaining Council. The bodies have their own rules and regulations on representation. In essence, no party can have representation at conciliation unless they bring in a registered union representative or a registered employer’s organisation representative for the employer. The employer can request a director or an employee to represent them. The registered trade union can bring in an official, as defined by the Labour Relations Act. If the employer is represented by an employers organisation, the organisation must be registered and an official of that organisation is the only party which can represent the employer.
In arbitrations, the parties may be represented by a legal practitioner or a candidate attorney or any individual entitled to represent that party at a conciliation proceeding.
If the arbitration is about the fairness of a dismissal, when the employee alleges the reason for the dismissal relates to the employees conduct or capacity, the person is not entitled to be represented by a legal practitioner or a candidate attorney unless the commissioner and other parties consent. The commissioner may conclude that is unreasonable to expect the party to deal with the dispute without legal representation. The commissioner will consider issues like the nature of the questions of law raised, public interest and the ability of the parties or their representatives to deal with the dispute.
In the facilitation of large-scale retrenchments, it is similar and, normally, legal representation is outlawed. Any person other than a legal practitioner representing at the CCMA or Bargaining Council may not receive a financial benefit for agreeing to represent that party. If a party to the dispute objects to the representation then the commissioner must rule on that before the matter continues.
The commissioners will not allow one party to be unfairly disadvantaged against another during a dispute. The whole idea of the rules are to promote inexpensive and expeditious dispute resolution equitable to all parties.
Legal representatives may present argument to show that their client would be unfairly disadvantaged without proper legal representation.
It must be noted that the only representation allowed at the CCMA, Bargaining Councils and the Labour Court is from a registered trade union, a registered employers organisation or a legal practitioner. There have been interesting court judgments restraining the EFF from coming in to intervene in labour disputes. The rules have been tried and tested and, although evolving, have not allowed external parties other than the above to intervene in labour disputes.