Is labour law advice and legal representation worth it??
During a labour dispute, many employees find themselves asking whether consulting with a labour lawyer is the right option for them. The obvious benefit to representing yourself is the reduced costs, or so many would assume upon first analysis. The truth is that seeking out labour law advice will save you many costly decisions during the process of settling a labour dispute. A labour lawyer is highly specialized and is qualified to guide you through the entire CCMA process, which differs from the magistrates court or the high court, etc. Seeking labour law advice prior to approaching the CCMA will only leave you better able to make educated decisions regarding your case. While it may seem like a good idea to represent oneself during the arbitration process, if your employer is bringing a labour lawyer then you should as well. “Common sense” arguments do not win against unassailable evidence, which a labour lawyer will use to build a strong case.
When is legal representation allowed?
Before we can discuss why legal representation is so beneficial, we first have to identify the instances where it is not allowed at the CCMA. Rule 25 of the CCMA makes provision or right to be represented by a labour lawyer for employees, and also restricts this right if the dispute concerns fairness of dismissal on the grounds of misconduct or incapacity. Legal representation by a labour lawyer is automatically allowed in any other dispute during the arbitration process, however, this rule may also be relaxed under certain circumstances. Legal representation by a labour lawyer may be allowed if the commissioner and all other parties consent, or if the commissioner deems that it is unreasonable for a party to deal with the dispute without legal representation. This may be found to be the case after considering a number of factors, including:
- The ability of the different parties to deal with the dispute.
- The public interest.
- The complexity of the case.
- The nature of the questions of law raised by the dispute.
Legal representation is not allowed during conciliation, as this is were the parties are meant to work towards a consensus among themselves.
Why you should get a labour lawyer
The legal system is extremely difficult to understand, and anyone considering representing themselves should understand that labour lawyers spend years and years in formal education for a reason. Even if you are well researched in preparation for your case, you may still be at a loss when it comes to putting a strong case together, not to mention the legal jargon and courtroom etiquette. Besides having a wealth of knowledge, legal representatives also have a vast range of experience in dealing with cases similar to yours, and also make use of an extensive network of other professionals that can certainly become critical in winning a case. It becomes especially important to make use of legal representation when your opposition also does, as you will otherwise be up against someone who is far more competent than you are.
What is a labour lawyer, specifically?
Labour law regulates the working relationship between employers, employees and trade unions. A labour lawyer is simply an attorney who specializes in labour law, and has the relevant training and experience required to help settle labour disputes. They provide labour law advice in a dispute and provide legal representation during arbitration. Some key duties performed by labour lawyers include:
- Handling of disputes at the CCMA.
- Drafting of employment contracts.
- Drafting of codes of conduct.
- Drawing up the employment equity plans in a company.
- Chairing of disciplinary enquiries.
- Intervention in strike action or lockouts.
- Offering labour law advice on dismissal from the workplace regarding incapacity, misconduct and retrenchment.
- Drafting of any documents that require your employees to sign, such as cessions, loan agreements or letters of suretyship, etc.
Why it’s better to get professional labour law advice prior to approaching the CCMA
Professional labour law advice can be of indispensable value prior to approaching the CCMA for a multitude of reasons, including but not limited to the fact that approaching the CCMA might not be the right option or you. The CCMA does not take on disputes of the following nature:
- Where a private agreement exists for handling disputes within the company.
- Where a bargaining or statutory council exists for the sector you are in.
- Where an independent contractor is involved.
- Where the dispute does not fall under a specific issue within the Employment Equity Act of 1998, or the Basic Conditions of Employment act of of 1997.
Another reason that seeking labour law advice is in your best interest, is that you can make an educated decision as to whether you have any reasonable grounds for approaching the CCMA to begin with. This is very important because making unreasonable allegations against an employer can be costly. The CCMA, along with Labour Court and bargaining councils, deals with over 200 000 cases per year. It is not surprising then, that you may be penalized for making frivolous claims that are unsupported by facts. If this is the case you may be expected to cover part of your employer’s legal costs.
For these reasons such as these, and many more, the CCMA process can be difficult to understand for the average citizen. Seeking professional labour law advice will only serve to keep you from making costly decisions.