| 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 or the employer's principle place of business is located, unless the Head of Dispute in the head office of the Council directs otherwise. |
| (2) |
The Council within a region determines the venue for conciliation or arbitration proceedings. |
| 25. |
Representation before the Council |
(1)
| (a) |
In conciliation proceedings a party to the dispute may appear in person or be represented only by— |
| (i) |
if the party is an employer, a director or employee of that party and, in addition, if it is a close corporation, a member or employee of that close corporation; |
| (ii) |
any member of that party's registered trade union or registered employers' organisation or an office bearer or official as defined in the Act or an office bearer or official as defined in the Act of a registered federation of trade unions or registered federation of employers' organisations; |
| (iii) |
if the party is a registered trade union, any member of that trade union or any office bearer or official as defined in the Act and authorized to represent that party or an office bearer or official as defined in the Act of a registered federation of trade unions and authorized to represent that party; or |
| (iv) |
if the party is a registered employers' organisation, any director or employee of an employer that is a member of that employers' organisation or an official or office bearer as defined in the Act and authourized to represent that party or an office bearer or official as defined in the Act of a registered federation of employers' organisations and authorized to represent that party. |
| (v) |
if a party is the department of labour, any employee or official of the department of labour. |
| (b) |
Subject to paragraph (c), in any arbitration proceedings a party to the dispute may appear in person or be represented only by— |
| (i) |
a legal practitioner; |
| (ii) |
a candidate attorney; or |
| (iii) |
an individual entitled to represent the party at conciliation proceedings in terms of sub-rule (1)(a). |
| (c) |
If the dispute being arbitrated is referred in terms of section 69(5), or 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 or a candidate attorney in the proceedings unless: |
| (iv) |
the commissioner and all the other parties consent; |
| (v) |
the commissioner 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. |
| (e) |
No representation by a legal practitioner or candidate attorney shall be allowed in facilitations of large scale retrenchments as contemplated in section 189A(3). |
| (f) |
No person representing a party in proceedings before the Commission in a capacity contemplated in sub-rule (1)(a) or (b), other than a legal practitioner or candidate attorney contemplated in sub-rule (1)(b)(i) and (ii), may charge a fee or receive a financial benefit in consideration for agreeing to represent that party. |
| (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 calf 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 (3), including constitutions, payslips, contracts of employment, documents and forms or recognition agreements and proof of membership of a trade union or employers' organisation. |
| (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' organisation as an employer party, or a member of an employers' organisation that is a party to proceedings, if the commissioner, after enquiring into the matter and considering relevant representations, believes that— |
| (e) |
the representative joined the employer's organisation for the purpose of representing parties in the Council; or |
| (f) |
the representative's participation in the dispute resolution process |
| (i) |
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; |
| (ii) |
is not in keeping with the objectives of the Labour Relations Act 66 of 1995; or |
| (iii) |
may have the consequence of unfairly disadvantaging another party to the dispute. |
| (6) |
Despite the provisions of this rule, but subject to the provisions of sub-rule (1)(f), the commissioner may, on application brought in accordance with rule 31, allow a person not contemplated by sub-rule (1) to represent a party at arbitration proceedings before the commission, after considering— |
| (a) |
whether the proposed representative is subject to the oversight and discipline of a professional or statutory body; |
| (b) |
whether the proposed representative will contribute to the fairness of the proceedings and the expeditious resolution of the dispute; |
| (c) |
prejudice to the other party; and |
| (d) |
any other relevant factors. |
| 26. |
How to join or substitute parties to proceedings |
| (1) |
The Council or a commissioner may, at any stage prior to the conclusion of an arbitration or hearing, make an order joining any number of persons as parties in the proceedings if: |
| (a) |
The right of the referring party to relief depends on substantially the same question of law or fact,which, if a dispute were to be referred separately against the person sought to be joined, it would arise in a separate claim; |
| (b) |
the party to be joined has a substantial interest in the subject matter of the proceedings; or |
| (c) |
the party to be joined may be prejudicially affected by the outcome of the proceedings. |
| (2) |
A Council or commissioner may make an order in terms of sub-rule (1): |
| (b) |
on application by a party; or |
| (c) |
if a person entitled to join the proceedings applies at any time during the proceedings to intervene as a party. |
| (3) |
An application in terms of this Rule must be made in terms of Rule 31. |
| (4) |
When making an order in terms of sub-rule (1), a commissioner may— |
| (a) |
give appropriate directions as to the further procedure in the proceedings; and |
| (b) |
make an order of costs in accordance with these Rules. |
| (5) |
If in any proceedings it becomes necessary to substitute a person for an existing party, any party to the proceedings may apply to the Council 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. |
| (6) |
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, including the referral form, 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. |
| (7) |
Subject to any order made in terms of sub-rules (4) and (5), 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 Council 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 Council may consolidate disputes |
| (1) |
The Council 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. |
| (2) |
The Council or a commissioner may order consolidation of separate disputes of right, where— |
| (a) |
the relief sought in each of the separate dispute to be consolidated, depends on the determination of similar or substantially the same questions of law and fact. |
| (b) |
there will be no substantial prejudice on the party or parties sought to be joined through a consolidation order; |
| (c) |
the balance of convenience favour such consolidation; and the NBCPSS has jurisdiction on all disputes sought to be consolidated. |
| 29. |
Disclosure of documents |
| (1) |
At any time after the request for arbitration, but not less than fourteen (14) days prior to the hearing date, either party may request the other party to disclose any documents or material relevant to the dispute. |
| (2) |
The party to whom the request is made must respond to the request within five (5) days from the date on which the request was received. |
| (3) |
A commissioner may either before or during the proceedings at his own accord, or on application, make an order as to the disclosure of relevant documents or other evidence. |
| (4) |
Notwithstanding the above, 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 Council |
| (1) |
If a party to the dispute fails to attend or be represented at any arbitration proceedings before the Council, and that party— |
| (a) |
had referred the dispute to the Council, a commissioner may dismiss the matter by issuing a written ruling; or |
| (b) |
had not referred the matter to the Council, the commissioner may— |
| (i) |
continue with the proceedings in the absence of that party; or |
| (ii) |
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 Council must send a copy of the ruling to the parties within 14 days. |
Statistics Act, 1999
