Shelley Wilson, labour lawyer and director at Bowman Gilfillan has informed us of a new development with the CCMA that should be of interest to all employers. A court has ruled that the CCMA’s rule, which prevents lawyers from appearing in arbitrations concerning dismissals for misconduct and incapacity, is irrational, arbitrary, unjustifiable and unconstitutional.
In Law Society of the Northern Provinces v Minister of Labour, CCMA & others, handed down on Monday, 9 October 2012, Tuchten J (North Gauteng High Court) found the CCMA rule limiting legal representation in misconduct and incapacity dismissals to be unconstitutional on the grounds that:
- It is inconsistent with the Promotion of Administrative Justice Act 3 of 2000 because it does not give commissioners adequate discretion in "serious" (as opposed to "complex") cases; and
- It is arbitrary, because it identifies one category of case a priori for different treatment irrespective of the merits of each individual case.
The declaration of invalidity of the rule is suspended for 36 months "to enable the relevant parties to consider and promulgate a new subrule". In the meantime, the rule holds, but commissioners will no doubt be aware that if they refuse legal representation, they are acting under a rule which is in principle unconstitutional.
If you would like more detail or information about the judgment, please contact Shelley Wilson at Bowman Gilfillan on 021 480 7800 or email email@example.com.
It seems to me that this will have no immediate effect in law on the limitation of legal representation, pending any appeal of the judgment or, failing an appeal, any amendment to the rule that may be made at any time during the next 3 years. It may be that commissioners will, in the interim, become open to persuasion that legal representation should be permitted where a case is "serious" even if not "complex". Interestingly, the Judge appeared to consider dismissal cases more serious for the dismissed worker than may be claimed on the part of the employer.