OTHER NEWS: The SCA finds that employees are not by default allowed legal representation in unfair d

In the recent decision of CCMA v The Law Society of the Northern Provinces (005/13) [2013] ZASCA 118 (20 September 2013), the Supreme Court of Appeal (SCA) held that it is not unconstitutional to refuse legal representation during arbitration hearings heard by the Commission for Conciliation, Mediation and Arbitration (CCMA) in matters relating to misconduct and incapacity. The CCMA rules allow for legal representation in cases other than those of misconduct and incapacity. In the such circumstances, legal representation is allowed at the discretion of the commissioner or by agreement between the commissioner and the parties.

The SCA, in overturning a previous ruling by the High Court, ruled that it is not unconstitutional to disallow legal representation at an arbitration hearing for a number of reasons, one of which was the very cynical view that unsatisfied parties could always take a matter to the Labour Court, where legal representation is allowed.

This judgment may have a number of negative impacts on dismissed employees. Companies are often represented at CCMA hearings by their HR representatives who, although they do not qualify as “legal representatives”, often have a sound knowledge of labour law, whereas employees often have none – thus putting the employee at a disadvantage. While CCMA commissioners are supposed to intervene to assist employees in such situations, this is not always the case and could result in an unfair ruling at the CCMA, forcing the former employee to take the matter to the Labour Court, which may only be done in limited circumstances and at great cost.

While the SCA’s judgment was on the whole well-reasoned and legally sound in a technical sort of way, one has to wonder whether enough thought was given to the negative impact that it will no doubt have on many dismissed employees.