Legal Representation During Arbitration

by | Sep 8, 2020 | Civil Litigation and Alternative Dispute Resolution, Publications | 0 comments

It is undisputed that the majority of people who refer disputes to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) hail from the vulnerable parts of our society. Most of them are poor, are not very educated and a vast number of them are attempting to decipher CCMA proceedings in an unfamiliar language. If charged with any employment transgression, they are incapable, generally, of determining for themselves whether the indictment is good or bad.

Legal representation during Arbitration proceedings at the CCMA is automatic unless the dispute involves an unfair dismissal due to conduct or capacity. The exception wherein this rule may be relaxed is when both parties consent to it or permitted by the Commissioner.

The aim of the CCMA

The CCMA as the established dispute resolution body in terms of the Labour Relation Act 66 of 1995 is aimed at promoting fast, informal and cost-efficient resolution of labour disputes. It is undisputed that the primary role of Commissioners is to resolve the dispute and attempt, by all means, to push for a settlement agreement. However, it is the prevailing view of some Commissioners that legal representation tends to hinder that role.
Many Commissioners are very cautious, especially when it comes to allowing legal representation because it frustrates the dispute resolution process with technical and too legalistic arguments which are undesirable. Be that as it may, the only quest should be one for dispute resolution in a just manner.

Balancing of scales during Arbitration

During CCMA proceedings, it is trite that the Employer Organisation or the Employer employs the services of individuals with a legal background. It may be a non-practising Attorney or legal graduate. This tends to intimidate the employee and which leads or appear that the balancing of scales is tipped against the employee.
At times it all boils down to human relations wherein the Client feels uncomfortable and intimidated by the other party regardless of the presence of an interpreter and Commissioner whose duty is to act an umpire. This is due to the fact that the employees may lack both the skill and knowledge to prepare and articulate their side of the story adequately. Without some form of legal representation, though he/she be not in the wrong, faces the risk of under settling or losing because he/she does not know how to establish his/her innocence.

Conclusion

It is therefore critical to appreciate that where one party has legal representation and the other does not, an automatic assumption of an unfair process may arise. It is therefore advisable to seek advice and to empower yourself with knowledge. At SchoemanLaw Inc we write regularly on a range of topics, do various videos and radio shows. This in addition to the services and advice we offer in this regard. For any Labour related enquiries, contact SchoemanLaw Inc.

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