Draft!: Application for legal representation at the CCMA in an unfair dismissal dispute.

Scroll downward past the form to read more in terms of Rule 25 of the CCMA Rules and how to apply for legal representation in certain matters.

CCMA Application for Legal Representation

(In terms of Rule 25 of the Rules for the Conduct of Proceedings before the CCMA)

Important Note: In terms of Rule 25 of the CCMA Rules, legal representation is not automatically allowed in arbitration proceedings involving dismissal for misconduct or incapacity. A party who wishes to be represented by a legal practitioner or candidate attorney must apply either:

1. By agreement with all other parties; or
2. By applying to the Commissioner who may grant permission after considering specific factors.

Case Number:

Applying Party:

Applicant Name:

Contact Person (if applicant is a company):

Contact Number:

Email Address:

Other Party’s Name:

Dismissal Type:

Scheduled Arbitration Date:

CCMA Office:

Has consultation with the other party regarding legal representation taken place?

Does the other party consent to legal representation?

Details of Legal Representative:

Name of Legal Representative or Law Firm:

Legal Representative Type:

Legal Representative’s Contact Number:

Legal Representative’s Email:

Reasons for Requiring Legal Representation:

Address the factors in Rule 25(1)(c) including: nature of questions of law raised by the dispute, complexity of the dispute, public interest, and comparative ability of parties.

Nature of the Legal Questions Raised:

Complexity of the Case (explain why):

Public Interest Considerations (if any):

Comparative Ability to Present Case:

Explain why it would be unreasonable to expect you to deal with the case without legal representation, considering the other party’s representation.

Additional Considerations:

Date of Application:

Understanding CCMA Rule 25: Representation before the CCMA

Key Principle: Rule 25 of the CCMA Rules establishes who may represent parties in conciliation and arbitration proceedings before the CCMA. It sets different requirements for different types of representatives and dispute types.

Summary of Rule 25

Based on the CCMA Rules document and information sheet provided, Rule 25 of the Rules for the Conduct of Proceedings before the CCMA regulates who may represent parties in CCMA proceedings. Below is a summary of the key provisions:

RULE 25: REPRESENTATION BEFORE THE COMMISSION

(1) At conciliation and arbitration proceedings, a party may appear in person or be represented only by:

If the party is an employer, a director or employee of that party, or if a close corporation, a member of that close corporation;
Any member of that party’s registered trade union or registered employers’ organization, or an office bearer or official as defined in the Labour Relations Act;
If the party is a registered trade union, any member of that trade union, or an office bearer or official as defined in the LRA and authorized to represent that party;
If the party is a registered employers’ organization, any director or employee of an employer that is a member of that employers’ organization or an official or office bearer as defined in the LRA and authorized to represent that party.

(2) In arbitration proceedings, a party may be represented by a legal practitioner or candidate attorney unless the dispute is about the fairness of a dismissal and the reason for the dismissal relates to the employee’s conduct or capacity.

(3) If the dispute being arbitrated is about the fairness of a dismissal and the reason for the dismissal relates to the employee’s conduct or capacity, a party may be represented by a legal practitioner or a candidate attorney only if:

The commissioner and all the other parties consent; or
The commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering:
1. The nature of the questions of law raised by the dispute;
2. The complexity of the dispute;
3. The public interest; and
4. The comparative ability of the opposing parties or their representatives to deal with the dispute.

When Can You Represent Yourself or Use Non-Legal Representatives?

In all CCMA proceedings (both conciliation and arbitration), a party may always:

Appear in person (represent themselves)
Be represented by a director or employee if the party is an employer
Be represented by a member if the party is a close corporation
Be represented by a member of their registered trade union or employers’ organization
Be represented by an office bearer or official of their registered trade union or employers’ organization

These representatives are always allowed in any type of CCMA matter and do not require special permission.

When Can You Use Legal Representation?

The rules for legal representation (attorneys, advocates, and candidate attorneys) differ depending on the type of dispute:

Type of Dispute	Legal Representation Status	Requirements
Most arbitration cases	Generally Allowed	Permitted unless another party objects and the commissioner finds the objection reasonable
Unfair dismissal based on operational requirements (retrenchment)	Allowed	No special permission needed
Unfair dismissal based on unknown or disputed reasons	Allowed	No special permission needed
Constructive dismissal	Allowed	No special permission needed
Unfair dismissal based on misconduct	Restricted	Requires commissioner’s permission or consent of all parties
Unfair dismissal based on poor work performance (incapacity)	Restricted	Requires commissioner’s permission or consent of all parties
Unfair dismissal based on ill health/injury (incapacity)	Restricted	Requires commissioner’s permission or consent of all parties

Important: Legal representation is NOT automatically allowed in dismissal cases where the reason for dismissal relates to the employee’s conduct (misconduct) or capacity (poor work performance or ill health).

How to Apply for Legal Representation in Misconduct or Incapacity Dismissal Cases

If you want to be represented by a legal practitioner in a misconduct or incapacity dismissal case, you must either:

Obtain consent from both the commissioner and all other parties; or
Apply to the commissioner for permission to have legal representation

The Application Process

1 Prepare your application in the form of a sworn affidavit

Your application should be made in writing, in the form of an affidavit sworn before a Commissioner of Oaths.

2 Address the four factors the commissioner must consider

Your application must specifically address each of the following factors:

Nature of the legal questions raised by the dispute: Explain any complex legal issues or questions of law that arise in your case
Complexity of the dispute: Detail why your case is factually or procedurally complex
Public interest: Explain if your case has implications beyond the parties involved
Comparative ability: Address why it would be unreasonable to expect you to deal with the case without legal representation, considering your ability compared to the other party

3 Submit your application as early as possible

Submit your application well before the scheduled arbitration date to give the commissioner time to consider it.

4 Serve a copy on all other parties

Ensure all other parties to the dispute receive a copy of your application.

What Makes a Strong Application?

The commissioner will be more likely to grant your application if you can demonstrate:

The case involves complex legal principles or statutory interpretation that requires legal expertise
There are technical aspects that an ordinary person would struggle to address effectively
The other party has representation with specialized knowledge creating an imbalance
The consequences of the case for you are particularly serious

Example: An employee dismissed for misconduct related to alleged financial irregularities might argue that the case involves complex accounting principles, questions of evidence and burden of proof, and potential implications for future employment that make legal representation necessary.

Additional Important Provisions

Objections to Representation

If a party objects to another party’s representative, or if the commissioner suspects that a representative doesn’t qualify under the rules, the commissioner will make a determination about whether the representative should be permitted.

Exclusion of Representatives

A commissioner may exclude a representative who is a member of the same employers’ organization as an employer party, or a member of a trade union party to the proceedings, if:

The representative joined the organization primarily to represent parties at the CCMA;
The representative’s participation would be contrary to the purpose of efficient and effective dispute resolution;
The representative’s participation may unfairly disadvantage another party to the dispute.

No Fee Charging by Non-Legal Representatives

No person other than a legal practitioner or candidate attorney may charge a fee or receive financial benefit for representing a party before the CCMA.

Special Cases

Section 188A Inquiries (Pre-dismissal Arbitrations)

In Section 188A inquiries, legal representation is only permitted if explicitly allowed in the employee’s contract of employment or applicable collective agreement.

Large-Scale Retrenchment Facilitations

In facilitation proceedings for large-scale retrenchments under Section 189A of the LRA, legal representation is expressly prohibited.

References:

This explanation is based on Rule 25 of the Rules for the Conduct of Proceedings before the Commission for Conciliation, Mediation and Arbitration (CCMA), as published in the Government Gazette No. 48445 of 21 April 2023, and the CCMA information sheet on CCMA Rules.

The interpretation and application of Rule 25 may evolve through CCMA practice and Labour Court decisions. Always consult the most current version of the CCMA Rules and consider seeking professional advice for your specific situation.