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Although CCMA rules generally allow you to have legal representation in arbitrations, there is one important – and common – exception.

Where the dispute is about the fairness of a dismissal related to either misconduct or incapacity, the default position is that you are not entitled to be represented by a legal practitioner. The commissioner in each matter has a discretion to allow such representation, but only if either -

* The commissioner and all parties consent, or
* The commissioner concludes that it is “unreasonable” to expect you to deal with the dispute without legal representation.

In a recent High Court decision this restriction - as currently worded – has been found to be arbitrary and unconstitutional.

Critically, though, the Court suspended the declaration of constitutional invalidity for 3 years to enable the relevant rule to be replaced, and noted that the rules need not provide for an unrestricted right to legal representation - so even the new rule will most likely contain restrictions (and a discretion for commissioners).

The current position

So do you now have an automatic right to legal representation at your arbitration? The answer is still “no, you don’t”.

The Court’s suspension of its declaration of invalidity means that individual commissioners are, for now at least, still free in law to apply the existing restrictions. Whilst some commissioners may in practice be more ready now than in the past to allow you legal representation in arbitrations, and whilst you should certainly ask for it, you are by no means guaranteed to get it.