Questions to Ask a Labour Lawyer Before a CCMA Hearing

Key takeaways

• Before a CCMA hearing, ask a labour lawyer to identify the exact process, confirm whether the CCMA or a bargaining council has jurisdiction, explain whether the lawyer may represent you at that stage, define what must be proved, and list the documents, witnesses and procedural work still needed. Then agree in writing on scope, responsibilities, fees, settlement authority and the plan if legal representation is not permitted.
• Take the complete notice and case file to the consultation. “CCMA hearing” can mean conciliation, the conciliation part of con-arb, arbitration, or a preliminary application. The lawyer’s permitted role and the preparation required are not the same at every stage.

Start with the notice, not the label

Ask the lawyer to read the actual CCMA or bargaining-council notice before discussing strategy. Record the case number, date, venue or online link, named parties, dispute description and process on the notice.

The CCMA glossary explains the institution at a general level. It does not determine the process, forum or representation right in a particular case.

1. “Is this the correct forum and process?”

Ask the lawyer to confirm:

• whether the dispute belongs at the CCMA, a bargaining council, an accredited agency, the Labour Court or another forum;
• whether the applicant and respondent are cited by their correct legal names;
• what dispute was actually referred and what the referral or certificate records;
• whether there is a live jurisdiction, condonation, service or amendment issue;
• whether the notice is for conciliation, con-arb, arbitration or an application; and
• which dates or directions require action before the hearing.

Do not ask only, “Do I have a case?” A useful first answer should identify the route and any threshold issue that could prevent the merits from being heard. If a filing may be late, a party is misnamed or the wrong forum was used, ask who will correct it and by when.

2. “Can you represent me at this stage?”

The answer should identify the rule, not assume that hiring a lawyer creates a right of appearance.

Current CCMA guidance says a legal practitioner or candidate attorney may not represent a party at conciliation, including the conciliation part of con-arb. At arbitration, legal representation is generally allowed, subject to Rule 25. In arbitration about a dismissal for misconduct or incapacity, or a dispute referred under sections 69(5), 73 or 73A of the Basic Conditions of Employment Act, representation by a legal practitioner or candidate attorney is restricted. The commissioner must deal with consent and the listed considerations, including the legal questions, complexity, public interest and comparative ability of the parties or representatives.

Ask four follow-ups:

1. Is representation automatic, restricted or the subject of an application in this matter?
2. If an application is required, who will prepare it and what facts support it?
3. What work will the lawyer do before conciliation if the lawyer cannot represent you there?
4. If representation is refused at arbitration, who presents the case and how will that person be prepared?

The labour-lawyer route describes the practice focus, while the labour-lawyer directory is the approved route for comparing available practitioners. Neither route confirms a right of appearance.

3. “What exactly must be proved, and by whom?”

Ask for a short written issues list. It should distinguish facts that are common cause, facts in dispute, the legal test, the onus and the remedy sought.

For a dismissal dispute, section 192 of the Labour Relations Act says the employee must establish the existence of a dismissal. If that is established, the employer must prove that the dismissal was fair. That allocation does not answer every factual or evidential question. The lawyer should explain how it affects the order of witnesses, documents and cross-examination in this specific case.

Ask the lawyer to separate:

• jurisdictional facts from the merits;
• procedural fairness from substantive fairness;
• the reason recorded by the employer from a new explanation offered later;
• evidence that proves a fact from material that merely repeats an allegation; and
• the remedy requested from what the commissioner may lawfully award.

The unfair-dismissal service page can help identify relevant assistance. It cannot predict whether a dismissal was unfair or what remedy will be awarded.

4. “Which records are missing or unsafe to rely on?”

Bring the complete file rather than selected screenshots. Ask the lawyer to identify what is authentic, relevant, admissible, disputed, incomplete or still needs to be requested.

A useful consultation pack may include:

• the referral, proof of service, certificate of outcome and every CCMA or council notice;
• the employment contract, policies, collective agreement and applicable workplace rules;
• the charge sheet, hearing notice, minutes, evidence, outcome, appeal and dismissal letter;
• payslips and remuneration records relevant to the pleaded claim or remedy;
• full email or message threads with dates, participants and attachments;
• a neutral chronology linked to source documents;
• a witness list stating what each person directly saw, heard or did; and
• earlier settlement communication kept separate and clearly identified.

Do not alter a document, crop away context, recreate a message or ask a witness to adopt wording that is not true. Preserve originals and metadata where possible. Limit unrelated personal or confidential material. The employment-dispute pack can help organise the record before the consultation.

5. “Which witnesses are necessary, available and credible?”

Ask what fact each witness proves, whether that evidence is first-hand, and whether another record proves the point more reliably. More witnesses do not automatically make a stronger case.

Confirm:

• who will contact each witness and by what date;
• whether the witness can attend at the stated venue or online;
• which documents the witness can identify or explain;
• what material contradictions must be addressed honestly;
• whether an interpreter or accessibility arrangement is needed; and
• whether a subpoena or expert notice is genuinely required.

Under the current CCMA Rules information sheet, an LRA Form 7.16 subpoena request and written motivation must reach the CCMA at least 14 days before arbitration. The request includes prescribed cost requirements, and an issued subpoena must be served within the rule’s period. Expert evidence has separate notice requirements. Ask for current, case-specific instructions rather than relying on an old form or this summary.

The lawyer may test a witness’s recollection and explain the process, but must not manufacture evidence or coach a false version.

6. “What procedural work must happen before the hearing?”

Ask for a dated responsibility list covering only steps that apply. Possible items include a representation application, disclosure request, subpoena, expert notice, statement of case, answering papers, pre-arbitration conference, indexed bundle, witness arrangements, online-hearing test or postponement application.

Current Rule 20 guidance requires a pre-arbitration conference when directed, agreed, or when both parties are represented by permitted representatives. Where the parties are represented or have agreed to hold one, the conference is held at least 14 days before arbitration and the referring party delivers the signed minute at least seven days before the hearing. A postponement is not automatic merely because both parties agree.

Ask the lawyer to state:

• the source of each date;
• who drafts, serves and files each document;
• which version is final;
• how proof of service and filing will be stored; and
• what happens if the other party does not cooperate.

The CCMA checklist supports logistics and file control but does not replace the current rules or a commissioner’s direction.

7. “How will the case be presented if arbitration proceeds?”

Ask for a plain-language hearing plan. It should cover the preliminary issues, opening position, witness order, documents introduced through each witness, likely cross-examination themes, disputed versions and closing argument.

The CCMA describes arbitration as a more formal process in which documents and witnesses may be used, parties may cross-examine and the commissioner issues a final and binding award. Preparation should therefore connect each material fact to a lawful source of proof. A large bundle with no witness or issue map can obscure rather than strengthen the case.

Also ask what could change the plan: a preliminary ruling, absent witness, late document, narrowed issue, admission, settlement proposal or direction from the commissioner. No lawyer should promise a result.

8. “What is our settlement plan and who may accept terms?”

Conciliation is designed to explore resolution, and settlement can remain possible later. Ask the lawyer to distinguish legal merits, litigation risk and a practical settlement range without presenting any figure as guaranteed.

Confirm:

• the outcomes that matter most and the terms that are unacceptable;
• who has authority to make or accept an offer;
• whether reinstatement, payment, references, confidentiality, tax treatment, dates and performance steps need wording;
• how any offer will be recorded and protected; and
• who checks the final written agreement before signature.

Do not sign an incomplete term sheet or assume that an oral understanding covers payment dates, deductions, withdrawal, enforcement or default. The decision remains the client’s after informed advice; the lawyer should not accept terms without authority.

9. “What are you doing, what am I doing, and what will it cost?”

Ask for a written mandate that defines the work. “CCMA matter” is too vague. The scope should say whether it includes the first consultation, file review, legal opinion, settlement communication, applications, bundle preparation, witness conferences, hearing attendance, additional hearing days and post-award advice.

Ask about:

• the fee basis and applicable VAT;
• the initial deposit and how it will be held or applied;
• estimated fees and disbursements for each phase;
• travel, candidate-attorney, counsel, expert, interpreter, printing or platform costs;
• fees if the hearing settles, is postponed, runs longer or representation is refused;
• who may approve work beyond the estimate;
• billing frequency, time records and payment dates; and
• what file material will be returned if the mandate ends.

The Legal Practice Council Code requires practitioners to advise clients at the earliest possible opportunity on likely success, avoid unnecessary work and expense, act competently and timeously, and charge a reasonable fee. A lawyer’s invoice is separate from any costs order a commissioner may make; do not assume that winning will recover the amount paid.

The labour-law hub provides the wider workplace-law map if the issue turns out not to be a CCMA merits hearing.

Leave with a written preparation record

Before the consultation ends, ask for or create a short record containing:

1. the process, forum, hearing date and immediate deadline;
2. the issue and onus summary;
3. the representation position and fallback plan;
4. the missing-document and witness list;
5. every task, owner and due date;
6. the settlement authority and communication route; and
7. the agreed scope, estimate and next review point.

Correct misunderstandings promptly. Keep the lawyer informed of new notices, contact changes, witness problems and settlement approaches. A consultation is useful when it produces an accurate allocation of work, not a general promise that the matter is “handled”.

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