# Regulatory Compliance Category > Labour Relations and Legislation Forum >  CCMA - questions

## Pap_sak

If I was found out to have not to have fired a person "correctly" - what would the CCMA penalty on average award? The person has worked for 8 months. 1,2,3 months salary? Any help would be appreciated - I am gatvol of this employee  :Mad:

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BBBEE_CompSpec (27-Nov-09)

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## BBBEE_CompSpec

97% of all CCMA cases are lost to the employer through not following procedure. Once the procedure has not been followed your reasons are lost too. Whether the employee has been with you one month or a number of years, the penalty for not following procedure can be up to 12 months. CCMA usually works on "from date of dismissal to date of resolution". There is usually 30 days from the date the LRA Form 7.11 has been submitted till you hear from the CCMA. A further two weeks till the CON/ARB or Conciliation date. No evidence is heard at this stage unless the matter refers to Arbitration immediately. If your reasons are very good you may get away with an offer of two months. If it goes to Arbitration and you have a"bad hair day" Commissioner you may lose up to six months. 

The best bet is to reinstate the employee before CCMA declares a date. Then follow procedure to get rid of the unruly employee.

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Pap_sak (28-Nov-09)

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## sterne.law@gmail.com

As BBBEE points out the award can be upto 12 months. There is no formula per se for calculating an award. The objective is twofold; compensate the employee and also to punish the employer. The second part is arguably where the emphasis lies as it is the employers actions that cause damage to the employee. Hence, where the employer has pretty much followed the rules etc but perhaps erred in a decision the award will be far less than where the employer simply says "theres the door, grap your jacket on the way out" As your employee has not been in employ that long, the compensatiuon he is entitled to is far less tahn an employee who has worked for say 15 years.
There are however 2 factors - procedure (whhich you admit is incorrect) and teh subsatnce or reasons. If you had genuine reasons to dismiss then once again the award will be limited only to the procedure. 
A quick tour of the process - Conciliation is where the Commisioner will try and assist the 2 parties to come to a settlement. Arbitration is where evidence is given and the Commisioner makes a decision  and an award. Presumably your matter is set for Con/Arb which means that it is all done on one day.
You specifically mention that you do not want employee back - the problem here is that the employee can ask for re-instatement which comes with back pay. So taht would be a problem for you. Perhaps the way forward is to - object to the con-arb taking place on one day. In this manner the conciliation will be attempted and only if it fails does it go to arboitration which will be on another day. With a settlement rate of 85%, and if you prepared to pay upto 3 months, you probably will be good to do the payoff and move on. (Of course this is relevant to the salary) You will obviously not start with an offer of 3 months.
If you fail to come to agreement you are no worse off than you are now and can either wait for arbitration OR try BBBEE strategy.

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BBBEE_CompSpec (28-Nov-09), Pap_sak (28-Nov-09)

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## Pap_sak

Well, she hasn't been back to work and she has told people that she is moving to another town. I havn't fired her - just hoping she doesn't come back. So far it's been like this:

1st day - didn't pitch up, no word
2nd day - sent text to say she was sick. later found out she got pissed. I start writing a warning letter, but she has not been back.
3rd day - did not pitch
4th - did not pitch

Would this help my case? I was wondering if she pitches up on Monday....

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BBBEE_CompSpec (28-Nov-09)

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## sterne.law@gmail.com

In this case you have not fired her. If she returns Monday discipline for absence. If she has not returned on Monday - you can either a) Do an absconding dismissal.

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BBBEE_CompSpec (28-Nov-09)

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## AmithS

Hi Guys,

Need some help on a similar topic here,

I got a copy of the LRA 7.11 faxed to me today (which as far as I read up is needs to be done before submitting to the ccma)

It is with regards to a casual employee that I hired temporarily for about 2 weeks who is now claiming unfair dismissal and no procedure being followed.  I have no contract or anything with the person as it was only a casual position!

Please advise on 2 things,
1. What happens next in terms of CCMA procedure?
2. How should I go about handling this situation?

Thanks,

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## sterne.law@gmail.com

The term casual should probably be forgotten in the field of labour. Less than 23 hours a month is what qualifies.

I would object to the con/arb process.
A quick tour of the process - Conciliation is where the Commisioner will try and assist the 2 parties to come to a settlement. Arbitration is where evidence is given and the Commisioner makes a decision and an award. Presumably your matter is set for Con/Arb which means that it is all done on one day.
By objecting you have only the conciliation whereby you can try and settle. This process does not require presenting evidence and you can do it your self. Most likely to settle. I would think that the Commisioner will point out to employee that their chances of success are poor. 
For your purposes a week or 2 weeks compensation woudl probably be cheaper than attending the arbitration form time and costs point of view. (This is an unfortuante element fo the process, we pay the 2 weeks becuase it is quicker and cheaper, this in turn encourages these frivolous claims.)

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AmithS (30-Jan-12)

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## Just Gone

What do i do in my case i was called to conciliation last year august - both parties agreed that i would take him back as i had never fired him.  He came back in sep on the mon morn and walked out again as he refusedvto sign a letter of appointmentment.  He went back to ccma and laid a new case where i ignored the conciliation meeting, sent them e mails explaining what had happened which they ignored - now i have arbitration on friday?

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## AmithS

sterne.law@gmail.com, thanks for information, it helps me understand this alot better.

The objection to the con-arb process how do you go about doing this?

In the fax I received under point 11 "I\We object to the arbitration process commencing immediately after the conciliation in terms of Sections 191 (5A)(c) the employee has signed this point. Are you referring to this?

Thanks,

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## sterne.law@gmail.com

If the employee signed it then it is supposed to be set down as conciliation only, this rarely happens, so best to send a notice to employee and then CCMA. (Does not matter if employee receives before the day or not)

it does not need to be fancy, I think the CCMA would have a notice on their web site

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## sterne.law@gmail.com

I have attached an example of objection to con/arb. (Take note the heading, case number and address are for Durban CCMA)
the normal service rules apply. Send to employee via reg post, fax or hand deliver.
Send same and proof of service on employee to CCMA.

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AmithS (31-Jan-12)

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## sterne.law@gmail.com

The employee must always show that there was a dismissal, whereafter an employer must show that the dismissal was fair.

Actually an interesting scenario. One line is to raise point in limine at start that the CCMA has no jurisdiction in that there was no dismissal. The converse of that is that the opponent may argue then that the settlement award was not honoured, (unless your settlement had a specific term of reference i,e to return to work by 6 January)

The other scenario is that the employee went AWOl and the position is in suspension pending his return whereupon he will face disciplinary action. Again the problem is that one may then be forced to run a disciplinary hearing.

I think raise the issue as a _point in limine_ that there was no dismissal in that the employee effectively "_resigned"_. Show the letter and your witness taht was tehre when he refused to sign and then walked out.
Emphasize taht if the matter runs you will seek costs. (Not usual to get costs but always worth a shot)

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## AmithS

What about the fact that the business belongs to a bargaining council that we pay fees to and that we follow all the rules as set out by the bargaining council?

Can I request that the matter be referred to the bargaining council which we fall under and are members of?

Thanks,

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## Citizen X

1. Go to the CCMA, it's only conciliation. tell the commisioner that the employee did not exhaust internal procedures before approaching the CCMA, which the CCMA rules requires an employee to do i.e. The Appeal process. Your employee did not appeal to you in writting. The commisoner will almost certainly tell the employee there and then to go back to the employee and appeal in writting first. How is an emplyee defined by law? If the person works for you for more than 27 hours(yes 27 hours) they are a full time employee!!

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## sterne.law@gmail.com

If there is a bargaining council then CCMA has no jurisdiction. Raise the issue at CCMA who will then rule no jurisdiction.
Employee will then have to refer the matter to the Bargaining council, probably be out of time and will need to apply for condonation.

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## IMHO

> If the person works for you for more than 27 hours(yes 27 hours) they are a full time employee!!


Is this per week, month or absolute threshold accumulating to over any period of time, starting day one?

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## Citizen X

1.       COMPENSATION: CCMA, your first port of call here is section 194 of the LRA which provides:-
*“194. Limits on compensation* 
(1)        The compensation awarded to an employee whose dismissal is found to be unfair either because the employer did not prove that the reason for dismissal was a fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow a fair procedure, or both, must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.
(3)        The compensation awarded to an employee whose dismissal is automatically unfair must be just and equitable in all the circumstances, but not more than the equivalent of 24 months' remuneration calculated at the employee's rate of remuneration on the date of dismissal. 
(4)          The compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but not more than the equivalent of 12 months’ remuneration”

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## Citizen X

With the benefit of restful retrospect, I can advise as follows:-
If I were in your position I’d do one of the following:-
1. Go to the CCMA and say, “No, I certainly did not dismiss this man, he is attempting to mislead the CCMA, he stayed absent. That said, he can even come back to work today, but I’ll have to give him a warning for absenteeism without notifying his employer and without a valid reason. Emphasize the, he’s trying to mislead the CCMA bit;
2. I did in fact dismiss him, I’m a small business, the Labour relations Act makes provision for small businesses dispensing with the rules and procedures that larger businesses would follow BUT he did not exhaust internal procedures Mr commissioner as is required by the CCMA rules, he must first appeal his dismissal to me in writing. The commissioner in this case would have to tell the employee to go back to the employee and appeal failing which the employee can come back to the CCMA
3. Your first port of call with any labour law related matter include the latest version of The Labour Relations Act 66 of 1995, The CCMA rules and The Basic Condition of Employment Act 75 of 1997;
4. All 3 statutes have been amended many times over the years, so be careful when you download a statute, make sure that it contains all the latest amendments;
5. COMPENSATION: CCMA, your first port of call here is section 194 of the LRA which provides:-
*“194. Limits on compensation* 
(1)        The compensation awarded to an employee whose dismissal is found to be unfair either because the employer did not prove that the reason for dismissal was a fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow a fair procedure, or both, must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.
(3)        The compensation awarded to an employee whose dismissal is automatically unfair must be just and equitable in all the circumstances, but not more than the equivalent of 24 months' remuneration calculated at the employee's rate of remuneration on the date of dismissal. 
(4)          The compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but not more than the equivalent of 12 months’ remuneration”

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AmithS (02-Feb-12)

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## Just Gone

Just as a matter of interest - what would happen if the CCMA did "fine" a company and ordered them to pay out say 3 months to an employee and the company did not comply - what are the implications ?  What can they actually do ?

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## Citizen X

*Okay, your first port of call is Section 143 and section 145 of the LRA, your second port of call if it involves a mistake is CCMA rule 32.*

*143. Effect of arbitration awards (LRA)*
*(1)        An arbitration award issued by a commissioner is final and binding and it may be enforced as if it were an order of the Labour Court, unless it is an advisory arbitration award.* 
*(2)        If an arbitration award orders a party to pay a sum of money, the amount earns interest from the date of the award at the same rate as the rate prescribed from time to time in respect of a judgment debt in terms of section 2 of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), unless the award provides otherwise.* 
*(3)        An arbitration award may only be enforced in terms of subsection (1) if the director has certified that the arbitration award is an award contemplated in subsection (1).*
*(4)        If a party fails to comply with an arbitration award that order the performance of an act, other than the payment of an amount of money, any other party to the award may enforce it by way of contempt proceedings instituted in the Labour Court.*
*145. Review of arbitration awards (LRA)*
*(1)        Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award-* 
*(a)        within six weeks of the date that the award was served on the applicant, unless the alleged defect involves corruption; or* 
*(b)       if the alleged defect involves corruption, within six weeks of the date that the applicant discovers the corruption.* 
*(1A)     The Labour Court may on good cause shown condone the late filing of an application in terms of subsection (1)*
*(2)        A defect referred to in subsection (1), means-* 
*(a)        that the commissioner-* 
*(i)         committed misconduct in relation to the duties of the commissioner as an arbitrator;* 
*(ii)        committed a gross irregularity in the conduct of the arbitration proceedings; or* 
*(iii)       exceeded the commissioner's powers; or* 
*(b)       that an award has been improperly obtained.* 
*(3)        The Labour Court may stay the enforcement of the award pending its decision.* 
*(4)        If the award is set aside, the Labour Court may-* 
*(a)        determine the dispute in the manner it considers appropriate; or* 
*(b)       make any order it considers appropriate about the procedures to be followed to determine the dispute.* 

*CCMA(RULE 32)*
*32   How to apply to vary or rescind arbitration awards or rulings* 

*1)* *An application for the variation or rescission of an arbitration award or ruling must be made within fourteen days of the date on which the applicant became aware of-* 
*a)* *the arbitration award or ruling; or* 
*b)* *a mistake common to the parties to the proceedings.* 

*1)* *A ruling made by a commissioner which has the effect of a final order, will be regarded as a ruling for the purposes of this rule.*

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## sterne.law@gmail.com

The employee must get the award stamped by CCMA, then a writ is issued and the sheriff must serve. The sheriff can then attach your goods.
If the award is re-instatement, the employee gets the award made an order of court, thereafter an application for contempt of court.

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## Just Gone

So therefore if we have already had a ccma meeting, signed and sealed by both parties for the employee to come back, which he failed to do then he is in fact in breach of the "contract" .  How the hell does he then get away with going back to the CCMA and opening another case against me 6 months later !!! ? .... where I now have to appear AGAIN in front of the ccma but with a different case number, but in fact the same case ?

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## Citizen X

Yes, I appreciate your frustration. What you have here is what we call a "professional plaintiff." Now, The CCMa only institute costs at as a last resort where they can see that the applicant is wasting resources. raise those facts you've raised here to the CCMA.

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## AmithS

Thanks to everyone for all the valuable input.

Now here is the new development,

I received a notice from the bargaining council "For the food retail, restaurant, catering & allied trades" notifying me that I need to attend a "CON\ONLY" meeting with regards to the same matter.

I received both within a space of 2 days (CCMA & BC), my thinking at the moment are that the person in question has submitted to both places!!!!! 

Additionally I have picked up through the ccma notice LRA 11.7 faxed to me that the person is being assisted by an attorney who is a relative as the attorney firm and person carry the same surname (They are listed as an alternative contact)

What does 1 do in this situation?

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## IMHO

> What you have here is what we call a "professional plaintiff."





> the person is being assisted by an attorney who is a relative


Well spotted Vanash.

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## Citizen X

Okay, if the employee is assisted by an assited you can rightfully argue that there no no complex legal questions to be argued here. The only time the CCMa will allow an attorney to represent any party both employee and employer is that if the attorney can prove that there are complex legal questions to be addressed that either party cannot reasonably be expected to argue by themselves. On this note the sections that deal with rights to representation have been amended ad nauseum!

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## Citizen X

*Your point of departure of objecting to an attorney representing the employee can be found in CCMA rule 25(also amended many times, this is how it currently stands.*
*1.     * *At conciliation, the employee may only be represented by* *any member , office bearer or official of that party's registered trade union or registered employer's organisation**;*
*2.     * *At arbitration(and if it’s con arb, then the attorney will not be allowed to represent at conciliation but may be allowed to represent at arbitration if all parties consent and if there are complex legal questions to be addressed that the employee himself cannot be reasonably expected to argue);*
*3.     * *Might I suggest, that at conciliation you definitely object to the employee being represented by an attorney, the CCMA will accept your object and preclude the attorney from speaking at conciliation;*
*4.     * *Then at arbitration you object to the attorney representing the employee on the following basis: 1:You do not consent; 2: There are no complex legal issues involved; the fact that the employee has gone both to the CCMA and Bargaining council can count to your favour, don't default yourself, go to both hearings and argue that both organisations cannot simultaneously hear the same matter, the employee must chose between the two
*
*The following is how the law stands on this issue:*

*25   Representation before the commission* 

*(1)  * *(a)* *In conciliation proceedings a party to the dispute may appear in person or be represented only by-* 
*1)           * *        a director or employee of that party and if a close corporation also a member thereof; or* 
*2)           * *        any member , office bearer or official of that party's registered trade union or registered employer's organisation.* 

*(b)  * *In any arbitration proceedings, a party to the dispute may appear in person or be represented only by:* 
*1)           * *        a legal practitioner ;* 
*2)           * *        a director or employee of that party and if a close corporation also a member thereof; or* 
*3)           * *        any member , office bearer or official of that party's registered trade union or registered employer's organisation.* 

*(c)   * *If the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee's conduct or capacity, the parties, despite subrule (1) (b) are not entitled to be represented by a legal practitioner in the proceedings unless-* 
*1)            * *the commissioner and all the other parties consent;* 
*2)            * *the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering-* 
*(a)              * *the nature of the questions of law raised by the dispute ;* 
*(b)              * *the complexity of the dispute ;* 
*(c)              * *the public interest; and* 
*(d)              * *the comparative ability of the opposing parties or their representatives to deal with the dispute .* 

*2)     * *If the party to the dispute objects to the representation of another party to the dispute or the commissioner suspects that the representative of a party does not qualify in terms of this rule, the commissioner must determine the issue.* 

*3)     * *The commissioner may call upon the representative to establish why the representative should be permitted to appear in terms of this Rule.* 

*4)     * *A representative must tender any documents requested by the commissioner in terms of subrule (3), including constitutions, payslips, contracts of employment, documents and forms, recognition agreements and proof of membership of a trade union or employers' organisation.* 
*5)     * *[Reg 25 corrected by GN R1748 of 5 December 2003 (as corrected by GN R530 of 30 April 2004).]*

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AmithS (03-Feb-12), Blurock (03-Feb-12), Dave A (03-Feb-12)

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## AmithS

Thanks Vanash Naick, you have been extremely helpful.

I am meeting with the bargaining council designated agent on Monday to sort out my fees for the year.  So I am also going to ask her about this situation at the same time and see what her interpretation is.

The only thing that worries me is that in the ccma LRA 11.7 document the person has asked for a translator to be present for 1 on the African languages.  I am hoping they don't try and sneak the lawyer in under the pretext of being a translator  :Mad:

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## Citizen X

It's my pleasure,
No, they can't, the interpretor works for the CCMA. Whatever you say in english is translated word for word, whatever the employee says in the said language the interpretor translates word for word. Remember to emphasize that the applicant is attempting to mislead the CCMA and does not have a bone fide cause of action

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## AmithS

So even if they say he is a translator, I can object and say that if the person needs a translator they must use the ccma translator?

Am I correct in saying this?

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## Citizen X

The CCMa only allows CCMA translators, they make this service available. The employee is estopped or rather precluded from bringing his own translator. The CCMA translator is already bound by the CCMA code of conduct and may strictly and only translate....

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AmithS (04-Feb-12)

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## Just Gone

Thanks for all your help Vanash ......... been very helpfull - I went to the ccma today where I was called to arbitration - the dumbass employee did not arrive so had to wait the customary 30min then case dismissed ...... but get told that he can oppose the dismissal if he wants and reopen !!! But hopefully he has dissappeared now and gone away !

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## Citizen X

I think he's gone for good!

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## AmithS

The last thing I need to know is at the Bargaining Council hearing, are the rules the same? i.e. is no legal representation allowed as discussed above for the ccma instance?

I looked through the bargaining council document but they make no mention of this!

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## Citizen X

Okay, Bargaining councils are regulated by the LRA but each BC will have it's own personalized way of doing things. In my expereience though, I've never come across a bargaining council that allows attorenys to represent an employee that has a dispute. They do however allow any union member, official or office bearer to represent the employee...

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## AmithS

When you say official or office bearer are you referring to people that work for the bargaining council?

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## Citizen X

no, the bargaining council itself, provide a mediation service. The parties  attending a hearing must arrange for their own representation. The bargaining councils endorse an employee being represented by any member of a Union, any office bearer of a Union and any official of that UNion.
This bring me to my main point, if typical shop stewards and other memebers of unions are receiving training on the disciplinary process and on how to adduce evidence then so should we. We need to stengthen our resolve. And, the only way that this can happen is if all members share their practical knowledge...

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Blurock (05-Feb-12)

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## Just Gone

It is so good to read good valuable sensible advice here - thanks again Vanash :-)

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## sterne.law@gmail.com

Legal representation -
CCMA and BC have the same rules with regards hereto. 
Attorneys acting for employees are accepted far easier than for employers. Our experience is that -
a) the employer is deemed capable of handling the matter, particularly where ether have an HR or IR manager representing,
b) the employer is given an opportunity to seek legal counsel - the matter is then postponed, allowing the company to get an attorney. This occurs where the Commissioner believes that the employee vs employer is not a level game and therefore the employee needs assistance, thus a postponement to allow the employer to get an attorney and restore the balance.
In our experience we have only been refused to represent an employee on one occasion and this was subsequently over ruled on review.
Attorneys acting for employers is a more difficult situation.

As a practice we always inform the opposition that we are acting for the relevant party. One does not want to get to the CCMA and othe party says they now need an attorney and want wasted costs.

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## AmithS

Hi Sterne,

So you are saying the chances of the CCMA or BC allowing legal representation i.e. a lawyer at the hearing is very high?

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## Dave A

I must confess Anthony's post has me confused too - it seems to contradict the procedural stuff Vanash post earlier.

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## Citizen X

It's a matter of leagl opinion really. In formulating an opinion, I look to the Labour appeals Court for guidance. I also look at what the relavant staute has to say on the matter.
1. As it stands, atorney's are not allowed at concialiation for the representation of an employee. At arbitration, the employer can object to the employee being represented by an attorney;
2. The employee must be able to show that there are complex legal issues to be argued which cannot be reasonably expected of the employee to execute efficiently and effectively;
3. Commisioners themselves have to look to the LAC for guidance and well as what the actual statute states;
4.Both substantive fairness and procedural fairness are cornerstones of the LRA;
In my opinion a commissioner cannot simply classify all employers as having the upper hand over the employee when it comes to representation becaus eof the employers infrastructure. If this truly was the case, then one must simply ask, where do we draw the line" Do we apply a rule that an employer is more equipted to deal with a labour dispute than an employee and becuase of this premise, do we then automatically rule in favour of an employee being represented by an attorney;
5. All businesses are not the same size and and don't have the same profit margins and number of employees so it will be very problematic to have a hard and fast rule of thumb with regards to representation. As the law stands, attorneys are not allowed at conciliation and must be able to show good cause at arbitration to represent an employee;
6. We must remember that the CCMA and bargaining councils are "alternate dispute resolution" bodies;
7. When in doubt about such a matter always look to the lAc and the statute for guidance as they are very clear on this matter of representation and judicial discretion.

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Dave A (07-Feb-12)

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## sterne.law@gmail.com

The chances for the employee are very high, for the employer much more difficult unless via a employers organization.

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## Citizen X

Hi Anthony,

I would firstly like to impress upon you that I have found many of your posts to be beneficial. I also would like to add that I have a profound respect for everyones opinion as a generlal rule in my life.
1. What you've essentialy done is put yourself in the commissioner's position and placed a presumption before us, i.e that the commissioner will use judicial discretion to allow an attorney to represent an employee. On this note even in the magistrates court and high court a magistrate and judge respectively can only exercise so much judicial discretion as they are bound by the law;
2. A commissioner cannot place every single employer in the broad category of employer. Employers difer on the basis of size, profit margins and number of employees. The LRA itself makes provision for smaller businesses to dispense with the rules and procedures of larger businesses;
3. It cannot be stated as a legal fact that the commssioner will automatically allow an employee to be represented by an attorney, in the first instance, each individual case is considered on it's own merits, in the second instance, the law itself reinforced by labour appeal court judgments currently states that an employee may not be represented by an attorney at conciliation and that should an employee bring an attorney to represent him at arbitration, all parties must consent and that the respondenet must show that there are complex legal issues at hand which the employee cannot be reasonably expected to argue by himeself;
4.In the third instance the CMMa is an alternate dispute resolution agency. The reason we have alternate dispute resolution agencies is becuase we don't what matters that could otherwise be resolved be escalated to the court system where attorneys and advocates are required. The brainchild of the CCMA was to present a situation very much the same as the small claims court where attorneys are not allowed. However in abitration if there are indeed complex legal questions , consent of all parties and the need to argue case law, a commissioner will in all probability allow legal representation.
I'm really hoping that this puts things in perspective!

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## Dave A

> In our experience we have only been refused to represent an employee on one occasion and this was subsequently over ruled on review.


I have faith in Anthony's experience of these things. On the flip side Vanash presents relevant "chapter and verse" evidence.

I see the challenge here really is *not* to establish which evidence is right or wrong, but to try to identify any possible contributing reasons why there is this apparent conflict in application.

Vanash mentioned many rule changes? is that it?
Or was it the nature of the employer in the cases Anthony has represented the employee?

There is one "fiddle" worth mentioning - There are some employer representative associations (I'm thinking of SEESA in particular) which really exist to ensure the employer *is* represented by a labour lawyer, and the nature of the rules can't prevent it. However, in such a position I could easily see a commissioner allowing legal representation for the employee to balance the equation... and that would seem fair enough i.m.o.

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## Citizen X

I may be wrong, but I think that Anthony represented and argued his case so well on behalf of the employee, that the CCMA allowed legal representation.
Yes, the section dealing with representation have been amended at the very least 8 times over the past 7 years. I think sometimes we argue things based on experience, eg(made up example, not true, just for illustration). All the accused I represented were granted bail even though they had no fixed address.

The latin maxim, "audi alteram partem" really holds true, ther are two sides to a story..

Guys, just want to say that I'm a very easy person, "I'm easy like a Sunday morning," so please don't feel offended by the manner in which something I state may come across

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## sterne.law@gmail.com

I am not going to respond specifically, but will set out perhaps with more clarity.

Firstly,*I did not* state it as legal fact but quite clearly, based on actual events and actual representation of an attorney before the CCMA and other Dispute Resolution Agencies, what is almost always the reality, again based on real and actual experience. I would believe that the practical and real events are indisputable.

To be in perspective, my wife appears mainly for employees, and attends on average 3 arbitrations per week. Last year alone probably close to a hundred arbitrations. ONLY on one occasion was she refused representation, which decsion was overturned on review.
I can also be quite clear, that only on about 5 occassions was it required to submit strong argument. These were all situations where the employee had substantial experience or a degree. The rest of the time it was a fairly easy decision for the Commissioner to make.

The comparitive ability remains the key issue and as submitted earlier the employee is almost always at a disadvantage. The employer is normally a manager, more education than the employee etc,etc and on this basis alone the employee is allowed an attorney. In certain circumstances, again set out previously, the Commisioner is comfortable that the employee needs representation but feels the employer may be disadvantaged by not having an attorney, and adjourns the matter thus allowing the employer to seek counsel.

In terms of SEESA and other employer organizations, there is no doubt that the majority are formulated merely for representation rights by attorneys. This is a problem. There has been some argument that becuase the rules say NO attorneys, that even when as an employers organization member, they are still excluded. For obvious reasons, (an attorney objecting to an attorney would be non-sensical) I have never bothered to explore the argument.

The converse of the employer organization having an attorney, is if the Commissioner should be duty bound to adjourn and allow the employee an opportunity to seek counsel. This often occurs in the Joburg and Durban Labour Court, where the judge adjourns and sends the employee to get legal help. It is made possible as these two courts have a joint project between SASLAW and ProBono.Org whereby lawyers act on a probono basis in labour court matters, where the criteria is met.

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Dave A (10-Feb-12)

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## Citizen X

Anthony, many thanks indeed for the clarification! :Cool:

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