This guide goes stage by stage. It explains the Rules generally and is not advice about your own case.
Referring: nobody needed
You refer by completing a form and delivering it to the CCMA with proof that your employer got a copy. It is free, and nothing in the Act or the Rules requires a lawyer to do it. If you want the steps, read How to refer a dispute to the CCMA, step by step.
Conciliation: no lawyers, for anyone
At conciliation you appear in person, or you are represented by a member, office bearer or official of your registered trade union. That is the list. A legal practitioner is not on it, and neither is a friend, a family member or a co-worker. The same rule binds your employer, who appears through a director or employee, or through its employers' organisation.
That surprises people on both sides, and it is deliberate. Conciliation is a conversation with a commissioner in the room, not a hearing, and the Rules keep it that way. What the day looks like is in What actually happens at CCMA conciliation.
Arbitration: possible, but restricted
Arbitration is where evidence is heard and a binding decision is made, and the Rules open the door a little wider. A party may appear in person, or be represented by anyone allowed at conciliation, or by a legal practitioner or a candidate attorney.
Then the door narrows again for the most common kind of case. If the dispute is about a dismissal for misconduct or incapacity, a lawyer is not allowed unless one of two things happens:
- the commissioner and all the other parties agree; or
- the commissioner decides it would be unreasonable to expect you to deal with the dispute without a lawyer, looking at the legal questions involved, how complex the case is, the public interest, and how evenly matched the two sides are.
That last factor matters. If your employer arrives with a legal practitioner and you have nobody, "how evenly matched the two sides are" is exactly what the commissioner is told to weigh. Ask for the ruling. It is yours to ask for.
For other kinds of dispute at arbitration, for example where the dismissal is not about misconduct or incapacity, the restriction does not apply and a legal practitioner may appear.
Who decides, and how
If one side objects to the other's representative, or the commissioner doubts that someone qualifies, the commissioner decides. The commissioner can ask the representative to prove it, with documents such as a union membership record or a payslip. So if you are bringing a union official, bring the proof that you are a member.
The rule that protects you from being charged
One line in the Rules is worth knowing before anyone offers to "represent you at the CCMA for a fee". A person who represents a party at the CCMA in any capacity other than as a legal practitioner or candidate attorney may not charge a fee or take a financial benefit for doing so. A union official representing a member does not charge. A "labour consultant" who is not a legal practitioner and asks for money to represent you at the CCMA is asking for something the Rules do not allow. If someone makes that offer, the Rule is the answer.
A legal practitioner, for this purpose, means an attorney or an advocate admitted and enrolled under the Legal Practice Act. If you are not sure whether someone is one, ask for their enrolment details.
Where a lawyer actually matters
Three places, and this is where honest information matters more than reassurance.
The Labour Court. Some dismissal disputes go there instead of to arbitration: automatically unfair dismissals, retrenchments, and a few others. At the Labour Court a legal practitioner may represent you, and the process is a court process with court rules. Most people who go there get help.
A review of an arbitration award. If you lose at arbitration and believe the commissioner got the process wrong, the route is a review to the Labour Court on narrow grounds, within a short period. Same answer: it is a court.
A case where the law is the fight. Most dismissal cases turn on facts: what happened, who said what, what the process was. Some turn on law, and those are the ones where the commissioner's own test, the complexity and the legal questions, points toward allowing representation.
What a lawyer costs, and what it is for
Opening a file with a labour attorney can cost R3,500, before any hearing. For a worker who has just lost an income, that is the figure that decides whether to ask the question at all. What you are paying for, when it is worth paying, is someone who knows which facts matter and how to put them to a commissioner. What you are not paying for is a different set of rules: the onus at arbitration is on the employer to prove the dismissal was fair, whether or not you have a lawyer.
What to do with this
Refer yourself. Go to conciliation yourself, or with your union. Before arbitration, know what your case actually rests on, so that you can decide whether representation is worth asking for and worth paying for. Do you have a CCMA case? How a commissioner decides sets out the questions a commissioner asks.
FairCase gives you a written read on an unfair dismissal case for R249 once-off: a probability score with the calculation shown, a settlement range, the fairness analysis and the risks. It is information, not representation. We are not a law firm and we do not appear with you. When the answer is that the case is weak, the report says so, which is worth knowing before you spend R3,500 to be told the same thing.