| (1) |
In conciliation proceedings— |
| (a) |
an employee or ex-employee1 may appear in person or can be represented by an office bearer, official or member of his or her registered trade union, provided that the employee was a paid-up member of that trade union at the date the dispute arose; |
| (b) |
an employer who is a sole trader may appear in person or can be represented by any of its employees; |
| (c) |
an employer who is a partnership can be represented by any of the partners or by any employee of the partnership; |
| (d) |
an employer who is a close corporation (CC) can be represented by any member or any employee of the CC; |
| (e) |
an employer who is a company can be represented by a director or an employee of that company; |
| (f) |
a government department, municipality or any organ of state can be represented by any one of its employees; |
| (g) |
an employer who is an association, organisation or other entity can be represented by one of its board members or by an employee; |
| (h) |
despite the provisions in (b) - (g), an employer can be represented by an office bearer, official or member of its registered employers' organisation; |
| (i) |
a registered trade union that is a party to a dispute can be represented by an office bearer, official or member of the trade union if authorised to do so in writing, which written authorisation must be handed up to the presiding commissioner at the commencement of the proceedings; |
| (j) |
a registered employers' organisation that is a party to a dispute can be represented by an office bearer, official or member of the employers' organisation if authorised to do so in writing, which written authorisation must be handed up to the presiding commissioner at the commencement of the proceedings. |
| (2) |
In arbitrations or any proceedings, other than conciliations, a party to the dispute may appear in person or be represented by a person as set out in sub-rule (1) or by a legal practitioner, subject to sub-rule (3). |
| (3) |
If an arbitration concerns the dismissal of an employee as a result of the employee's alleged misconduct or incapacity, a party is not entitled to be represented by a legal practitioner in the arbitration hearing,2 unless— |
| (i) |
the commissioner and all the parties consent; or |
| (ii) |
on application, which application must be done in accordance with Rule 35, and if the commissioner considering the application concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering— |
| (a) |
the nature of the questions of law raised by the dispute; |
| (b) |
the complexity of the dispute; |
| (c) |
the public interest; and |
| (d) |
the comparative ability of the opposing parties or their representatives to deal with the dispute. |
| (4) |
No representative other than a legal practitioner may charge a fee or receive any financial benefit in consideration for representing a party in any proceedings before the Council. |
| (5) |
If a party to the dispute objects to the representation of another party to the dispute or if the Commissioner suspects that a representative does not qualify to appear in terms of this Rule, the Commissioner seized with the matter must determine the standing of that representative. |
| (6) |
In determining whether a representative qualifies to represent a party in terms of this Rule, the Commissioner may call upon the representative to show why he or she should be permitted to appear in terms of this Rule and may direct the representative to tender any documents, including but not limited to, constitutions, pay-slips, contracts of employment recognition agreements and proof of paid-up membership of a registered trade union or registered employers' organisation. |
| (7) |
Despite the provisions relating to employer representation in this Rule, a commissioner may exclude an employer's representative if that representative joined an employers' organisation for the sole purpose of representing an employer in Council proceedings or if the participation of that representative may unfairly advantage the employer. |
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|
1 |
An "ex-employee" for the purposes of this Rule means an employee who alleges an unfair dismissal and who is challenging the fairness of the dismissal or an employee whose services were terminated and who alleges, In terms of section 186(2)(c) of the Act, that the employer has refused or failed to reinstate or re-employ him/her in terms of an agreement. |
| 2 |
For the purposes of this rule "arbitration hearing" means the actual arbitration and does not include other hearings or proceedings related to or flowing from the arbitration, such as jurisdictional challenges, other preliminary issues and applications. |
Housing Development Agency Act, 2008
