CCMA RULES

 

PART FIVE
RULES THAT APPLY TO CONCILIATIONS AND ARBITRATIONS AND CON-ARBS (ss 24-30)



24.   Where a conciliation or arbitration will take place

  1. A dispute must be conciliated or arbitrated in the region in which the cause of action arose, unless a senior commissioner in the head office of the Commission directs otherwise.
  2. The Commission within a region determines the venue for conciliation or arbitration proceedings.

25.   Representation before the Commission

  1.  

    1. In conciliation proceedings a party to the dispute may appear in person or be represented only by -

      1. if the party is an employer, a director or employee of that party and, in addition, if it is a close corporation, a member of that close corporation;
      2. any office bearer, official or member of that party's registered trade union or registered employers' organization;
      3. if the party is a registered trade union, any office bearer, official or member of that trade union authorized to represent that party; or
      4. if the party is a registered employers' organization, any office bearer or official of that party or a director or employee of an employer that is a member of that employers' organization authorized to represent that party.

    2. Subject to paragraph (c), in any arbitration proceedings a party to the dispute may appear in person or be represented only by -

      1. a legal practitioner; or
      2. an individual entitled to represent the party at conciliation proceedings in terms of sub-rule (1)(a).

    3. 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, a party is 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 -

        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.

    4. No person representing a party in proceedings before the Commission in a capacity contemplated in paragraph (a) or (b), other than a legal practitioner contemplated in paragraph (b)(i), may charge a fee or receive a financial benefit in consideration for agreeing to represent that party unless permitted to do so by the Commission.

  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 for the purposes of sub-rule (2), including constitutions, payslips, contracts of employment, documents and forms, recognition agreements and proof of membership of a trade union or employers' organization.
  5. Despite the provisions of sub-rule (1), a commissioner may exclude any person who is representing a party in any proceedings on the basis that they are a member of the same employers' organization as an employer party, or a member of an employers' organization that is a party to proceedings, if the commissioner, after enquiring into the matter and considering relevant representations, believes that -

    1. the representative joined the employer's organization for the purpose of representing parties in the Commission; or
    2. the representative's participation in the dispute resolution process -

      1. would be contrary to the purpose of the rule which is to promote inexpensive and expeditious dispute resolution in a manner that is equitable to all parties;
      2. is not in keeping with the objectives of the Labour Relations Act 66 of 1995; or
      3. may have the consequence of unfairly disadvantaging another party to the dispute."

26.   How to join or substitute parties to proceedings

  1. The Commission or a commissioner may, at any stage prior to the conclusion of an arbitration hearing, join any number of persons as parties in proceedings if their right to relief depends on substantially the same question of law or fact.
  2. A commissioner may make an order joining any person as a party in the proceedings if the party to be joined has a substantial interest in the subject matter of the proceedings.
  3. A commissioner may make an order in terms of sub-rule (2) -

    1. of its own accord;
    2. on application by a party; or
    3. if a person entitled to join the proceedings applies at any time during the proceedings to intervene as a party.

  4. An application in terms of this Rule must be made in terms of Rule 31.
  5. When making an order in terms of sub-rule (2), a commissioner may -

    1. give appropriate directions as to the further procedure in the proceedings; and
    2. make an order of costs in accordance with these Rules.

  6. If in any proceedings it becomes necessary to substitute a person for an existing party, any party to the proceedings may apply to the Commission for an order substituting that party for an existing party, and a commissioner may make such order or give appropriate directions as to the further procedure in the proceedings.
  7. An application to join any person as a party to proceedings or to be substituted for an existing party must be accompanied by copies of all documents previously delivered, unless the person concerned or that person's representative is already in possession of the documents. The application may be made at any stage prior to the conclusion of an arbitration hearing.
  8. Subject to any order made in terms of sub-rules (5) and (6), a joinder or substitution in terms of this Rule does not affect any steps already taken in the proceedings.

27.   How to correct the citation of a party

If a party to any proceedings has been incorrectly or defectively cited, the Commission may of its own accord, by consent of the parties or on application and on notice to the parties concerned, correct the error or defect.

28.   When the Commission may consolidate disputes

The Commission or a commissioner may, of its own accord, by consent of the parties or on application, and on notice to the parties concerned, consolidate more than one dispute so that the disputes may be dealt with in the same proceedings.

29.   Disclosure of documents

  1. At any time after the request for arbitration, either party may request a commissioner to make an order as to the disclosure of relevant documents or other evidence.
  2. The parties may agree on the disclosure of documents or other relevant evidence.

30.   What happens if a party fails to attend arbitration proceedings before the Commission

  1. If a party to the dispute fails to attend or be represented at any arbitration proceedings before the Commission, and that party-

    1. had referred the dispute to the Commission, a commissioner may dismiss the matter by issuing a written ruling; or
    2. had not referred the matter to the Commission, the commissioner may -

      1. continue with the proceedings in the absence of that party; or
      2. adjourn the proceedings to a later date.

  2. A commissioner must be satisfied that the party had been properly notified of the date, time and venue of the proceedings, before making any decision in terms of sub-rule (1).
  3. If a matter is dismissed, the Commission must send a copy of the ruling to the parties within 14 days.