Remarks by Labour Minister Membathisi Mdladlana that lawyers are ”milking” labour disputes and prolonging cases are ”unjustified and biased”, a labour lawyer said on Thursday.
”It is disingenuous to blame lawyers for the problems which arise at the Commission for Conciliation, Mediation and Arbitration [CCMA],” said Rod Harper, a director in the employment law department at Edward Nathan Sonnenbergs.
The CCMA’s case load and effectiveness problems can be largely solved if disputes are screened before being referred to arbitration, he said.
In his budget speech this week, Mdladlana said the role and functions of legal representation within the CCMA have to be closely examined to ”limit the damaging role lawyers are having on our system”.
”For the first time we now have objective data that confirms our long-held suspicion that lawyers are milking our labour-market regime to death by unnecessarily complicating and consequently prolonging cases to the detriment of both employers and employees,” he said.
Harper said the screening of referrals would eliminate frivolous cases and ease the case load of the CCMA.
An example is ”fraudsters” who refer alleged unfair dismissals and who have their cases heard.
”They should be cautioned during the screening process that, if they proceed, a costs order may be granted against them. These cases are allowed to progress to arbitration phase and cause unnecessary costs and wastage of time.”
Harper said the present CCMA system is ”fundamentally flawed” as it does not sufficiently encourage commissioners to grant costs awards.
This encourages parties to refer disputes as there is little or no risk to them, he said.
”The minister’s ‘suspicion’ that lawyers are undermining the labour system is highly questionable and he should publish the ‘data’ in his possession so that a proper debate can take place on the issue.”
Harper said lawyers have played a constructive role in representing clients in labour disputes.
Edward Nathan Sonnenbergs is a corporate law firm. — Sapa