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CCMA rule barring legal representation for employees during arbitration unconstitutional

The High Court in Pretoria has declared a CCMA rule barring legal representation for employees during arbitration as unconstitutional, the Law Society of SA said on Wednesday.

“The LSSA welcomes the judgment,” said spokeswoman Barbara Whittle.

“The rule does not allow an employee to have legal representatives in arbitrations concerning dismissals for misconduct or incapacity.”

Rule 25(1)(a) allowed legal representation in all arbitrations except where they concerned dismissals for misconduct or incapacity. Such an employee was not allowed legal representation at the Commission for Conciliation, Mediation and Arbitration unless the commissioner and all other parties to the arbitration agreed.

The matter was first brought to the court last year by the Law Society of the Northern Provinces, which represents attorneys in Gauteng, Mpumalanga, North West and Limpopo.

Judgment was delivered last week Thursday.

Evidence before the court showed that 80 percent of arbitrations before the CCMA were about whether a dismissal for misconduct was fair, said Whittle.

“The LSSA notes with appreciation the view expressed by the court that the dismissal of an employee is a serious matter.”