Cape Argus

REPRESENTA­TION AT LABOUR DISPUTES

- MICHAEL BAGRAIM

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.

 ??  ??

Newspapers in English

Newspapers from South Africa