Who Can Represent an Employer at the CCMA? | A Complete Guide

An employer at the CCMA may be represented by an admitted attorney or advocate only with the commissioner’s permission under section 138 of the Labour Relations Act 66 of 1995 (LRA) — there is no automatic right to legal representation at the CCMA. As an alternative, the employer may appear through a director, member, or employee of the company, or through a registered trade union or employers’ organisation official, none of whom require the commissioner’s permission to appear. Permission to be legally represented is granted where refusing it would cause “substantial injustice,” and the commissioner weighs the dispute’s complexity, the parties’ ability to make oral submissions, comparative prejudice, and the equities of the case before ruling.

The Statutory Framework: Section 138 of the LRA

Section 138(1) of the Labour Relations Act 66 of 1995 is the controlling provision for representation at CCMA arbitration. The starting point is the default rule: there is no automatic right to legal representation at the CCMA — a party may be represented by a legal practitioner only if the commissioner presiding over the arbitration grants permission. The provision also expressly allows a party to be represented by a co-worker, a director or member of the employer’s company, or a registered trade union or employers’ organisation official, without the commissioner having to grant permission for any of those representatives to appear.

The phrase “commissioner” in this context refers to the individual CCMA commissioner presiding over the specific arbitration, not the CCMA as an institution. Each commissioner applies the section 138 enquiry independently to the dispute in front of them, taking instructions from the Act, the rules, and binding case law. The position is materially different at bargaining councils, where council constitutions frequently allow legal representation as of right — a point that matters for any employer whose sector falls under a council agreement.

Who Can Represent an Employer at the CCMA: The Options

There are five representative options open to an employer at a CCMA arbitration. Three of them do not require the commissioner’s permission; the other two do. Choosing between them is largely a function of the dispute’s complexity, the size of the employer, and whether the employer belongs to a registered employers’ organisation whose constitution permits representation.

Representative type	Permission required	Best suited to
Admitted attorney or advocate	Yes — written request to the commissioner under section 138(1)	Complex unfair-dismissal, discrimination, or retrenchment disputes; matters involving voluminous evidence or conflicting factual disputes
Director, member, or shareholder of the employer company	No	Small-to-medium employers without in-house HR; routine procedural matters where the employer needs a familiar voice but the issues are not legally complex
Employee of the employer (non-legal)	No	Routine disciplinary and dismissal matters where the employer prefers an internal representative; often the HR manager or a senior manager familiar with the file
Registered trade union official (if employer is a member of an employers’ organisation)	No	Matters where the employer is a member of a registered employers’ organisation (e.g. AHI, SACCI) and the constitution permits representation by that body’s officials
Bargaining council representative (if a council agreement governs)	No, where the council constitution permits it	Disputes arising under a bargaining council agreement rather than the LRA directly — different rules apply (see “Bargaining Councils vs the CCMA” below)

The first row — legal representation — is the only one where the commissioner has an active discretion to refuse. The remaining four rows turn on whether the representative falls within the categories the Act allows to appear without permission.

The Section 138 Permission Test: When a Commissioner Will Allow a Legal Representative

The test for whether a commissioner will allow a legal representative to appear was formulated in Carephone (Pty) Ltd v Marcus NO & Others (1999) and has been refined in subsequent Labour Court and Supreme Court of Appeal decisions. The enquiry is not a bright-line rule; it is a fact-and-circumstance exercise. The commissioner weighs a cumulative set of factors before exercising the discretion.

The leading factors are:

1. Complexity of the dispute — does the matter involve points of law, multiple witnesses, conflicting expert evidence, or a substantial documentary record.
2. Ability to make oral submissions — can the unrepresented party present their case coherently, question witnesses, and respond to argument.
3. Comparative prejudice — does one side have a legal representative and the other not, creating an unfair imbalance.
4. Equity — does the overall balance of fairness favour allowing representation.
5. Substantial injustice — the overarching test: would refusal cause a substantial injustice that could not be cured on review or appeal.

The Supreme Court of Appeal has confirmed that complexity alone is not sufficient. The discretion is fact-specific and must be exercised judicially rather than by way of default refusal. Commissioners retain the power to refuse legal representation even where complexity exists, if they are satisfied that the unrepresented party can present their case fairly. The test, in other words, leans against automatic permission but does not justify automatic refusal either — it depends on the matter in front of the commissioner.

How to Apply for Permission to Be Legally Represented

The procedural mechanics of a section 138 application matter. A request that arrives late, in the wrong form, or without proper notice to the opposing party is at real risk of being refused as an abuse of process.

• Lodge the request in writing with the CCMA regional office as soon as possible after the arbitration date is set, and copy the opposing party.
• Identify the dispute, the representative, and the representative’s qualifications — admitting attorney or advocate, firm, years of practice where relevant.
• State the factors relied on — complexity, comparative prejudice, the nature of the documentary record, any points of law the commissioner will be asked to decide.
• Expect the ruling at the start of the hearing — commissioners normally rule on the request at the commencement of the arbitration, after brief argument from both sides.
• Record any refusal — where permission is refused, the refusal and the commissioner’s stated grounds should be recorded for potential review to the Labour Court under section 145 of the LRA.
• Avoid day-of-hearing requests — late applications made on the day of the arbitration are generally discouraged and may be refused as an abuse of process.

Bargaining Councils vs the CCMA: A Different Rule

Many disputes in sectors covered by a bargaining council — metals, motor, commercial catering, clothing, building — are routed to the council’s own dispute resolution procedure rather than to the CCMA. The LRA still provides the umbrella framework, but the council’s constitution takes effect as the controlling instrument for how its arbitrations run.

Bargaining council constitutions typically allow automatic legal representation in their arbitration proceedings. The section 138 restriction on automatic legal representation does not necessarily apply. An employer facing a bargaining council dispute should therefore confirm the relevant council’s constitution before assuming that the CCMA’s no-automatic-right rule carries across. Where a council fails to resolve a dispute within the statutory timeframe, the matter may be referred to the CCMA, at which point the section 138 framework re-engages and the CCMA’s permission requirement applies.

What a Legal Representative Actually Does at the Arbitration

A representative’s role at a CCMA arbitration is broader than appearing and arguing. The work starts before the hearing date and continues after the award is issued.

• Pre-hearing preparation — compiling the employer’s bundle of documents, drafting witness statements, preparing a chronology of the employment relationship and the events leading to the dispute.
• Opening the case — setting out the employer’s version of events, the issues the commissioner is being asked to decide, and the relief or outcome sought.
• Examining the employer’s witnesses — leading evidence-in-chief in a structured way that the commissioner can follow.
• Cross-examining the employee and their witnesses — testing the version of events, identifying contradictions, and putting the documentary record to the witness.
• Closing argument — addressing the legal points within the section 138 framework: the Code of Good Practice on dismissal, the fairness of the process, the substantive reasonableness of the employer’s decision.
• Post-hearing work — drafting any written submissions the commissioner requests after the hearing and, if the award is challenged, preparing a section 145 review application to the Labour Court.

Why Most Employers Choose Legal Representation

Even matters that look straightforward usually turn on whether the employer’s disciplinary process was substantively and procedurally fair — questions an experienced representative will frame more clearly than an HR manager on the spot. Cross-examination of the employee and their witnesses is the most common weakness of unrepresented employers; representatives trained in evidentiary procedure avoid the pitfalls of asking leading questions, failing to put the documentary record, or letting damaging concessions go unchallenged.

A representative can also prepare a defensible award from the outset. A well-structured award is harder to overturn on review, which limits the grounds on which a Labour Court review could succeed. Representation does not change the merits — the commissioner may still grant an award in the employee’s favour — but it materially improves the quality of the hearing and the record on which any later challenge will be decided.

This is the gap Burger Huyser Attorneys’ Labour Law practice is set up to close for Gauteng employers: the firm’s Labour Law consultant, Marius Ferreira, runs the work end-to-end, from reviewing the CCMA referral and preparing the section 138 application through to attending the arbitration and handling any post-hearing submissions or Labour Court review.

Practical Considerations for Employers

Three operational points tend to determine whether a matter is approached efficiently or runs into avoidable cost and delay.

Consideration	What to expect
Cost	Legal representation at a one-day CCMA arbitration typically runs from a fixed consultation fee through to a per-hearing fee scaled to complexity and seniority of counsel. Burger Huyser Attorneys quotes per-matter after an initial review of the referral and any applicable bargaining council agreement.
Timeline	CCMA arbitration is normally scheduled within four to six weeks of the referral being completed, with a further week or two for the award. Bargaining council timelines vary by council.
Documents for the first consultation	CCMA referral (Form 7.11 or equivalent), the employee’s representations, the disciplinary record, the contract of employment, the relevant workplace policies, the employer’s internal investigation notes, and any prior warnings or counselling records.

Gauteng Filing Layer: Where an Arbitration Is Heard in Practice

CCMA arbitration is governed by national rules under the LRA, but the practical venue depends on where the employer’s workplace sits. For Gauteng-based employers, the relevant regional offices are the CCMA’s Johannesburg office and the Pretoria (Gauteng North) office, which serves matters arising in the Tshwane region. Where the employer’s sector is covered by a bargaining council — metals, motor industry, commercial catering, clothing, building — the matter is routed through the council’s own dispute procedure and constitution rather than the CCMA.

If the arbitration proceeds and any review or appeal is required, the Labour Court in Johannesburg, sitting at the Labour Court building in Braamfontein, is the court of first instance for review applications under section 145 of the LRA. Gauteng employers whose matter is initiated at one of the Johannesburg-anchored branches can be represented by the same team that handles the arbitration — a continuity that avoids the cost and delay of instructing a separate firm for the review stage.

Burger Huyser Attorneys’ head office at 49 First Avenue, Linden, Randburg (011 888 0246) is the firm’s central point for labour-law work, with the firm’s Johannesburg-anchored litigation capacity available across all Gauteng branches where an employer’s matter is initiated. The firm is a member of the Johannesburg Attorneys Association and the Pretoria Attorneys Association, both of which keep the practice current on how the section 138 discretion is applied by Gauteng commissioners. For current procedure and any updates to the section 138 framework, the Legal Practice Council (lpc.org.za) and the CCMA (ccma.org.za) remain the authoritative sources.

Frequently Asked Questions

Can an employer always have a lawyer at the CCMA?

No. The default position under section 138(1) of the LRA is that there is no automatic right to legal representation at the CCMA. The employer must apply to the commissioner for permission, and the commissioner weighs complexity, the parties’ ability to make submissions, comparative prejudice, equity, and the overall test of substantial injustice before granting it.

Who can represent an employer at the CCMA without needing the commissioner’s permission?

A director, member, or shareholder of the employer company; an employee of the employer; or a registered trade union or employers’ organisation official. None of these need the commissioner’s leave to appear.

What is the test for getting a legal representative at the CCMA?

The commissioner applies the section 138 enquiry developed in Carephone v Marcus NO (1999) and refined in subsequent case law. The key factors are complexity of the dispute, ability to make oral submissions, comparative prejudice between the parties, the equities, and whether refusal would cause substantial injustice that cannot be cured later.

Are the rules different at a bargaining council?

Often yes. Bargaining council constitutions frequently permit legal representation as of right, unlike the CCMA. An employer should check the applicable council’s constitution before assuming the CCMA’s no-automatic-right rule applies.

When should the employer apply for permission to be legally represented?

As early as possible after the arbitration date is set — a written request to the CCMA regional office, copied to the employee. The commissioner will normally rule on the request at the start of the hearing. Late requests made on the day itself are often refused as an abuse of process.

Can the employer refuse to attend the CCMA if permission to be legally represented is refused?

No. The arbitration proceeds regardless. The employer can record the refusal and the commissioner’s reasons for possible review to the Labour Court under section 145 of the LRA, but non-attendance can lead to a default award against the employer.

If you are an employer facing a CCMA referral and need to decide whether to apply for legal representation, contact Burger Huyser Attorneys on 011 888 0246 (after-hours 061 516 6878) or visit the head office at 49 First Avenue, Linden, Randburg, 2195. The firm’s Labour Law practice is run by specialist consultant Marius Ferreira and handles the full arc — reviewing the referral, preparing the section 138 application, attending the arbitration, and drafting any post-hearing submissions or Labour Court review. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and fields labour-law work across all Gauteng branches. Initial consultations are booked through the Linden head office; bring the CCMA referral, the employee’s representations, the disciplinary record, and the contract of employment to the first meeting.