RISK STRATEGY FOR EMPLOYERS: Be prepared for employment challenges

South Africa’s labour market is dynamic and governed by a complex set of laws designed to protect both employees and employers. These laws are also frequently updated, and their interpretation can vary depending on the context – so a basic understanding of the legislation is not enough. It is no mean feat to try and stay on top of everything for organisations and businesses, and it is not something that HR can just be expected to manage alone. Expert guidance and support are required to ensure compliance, mitigate risks, and foster a productive workplace environment.

Employment disputes - an unavoidable reality

Do you recognise these signs / feelings?

• Frustration with the amount of time internal grievances, discipline and meetings take to resolve staff issues?   

• Apprehension about your prospects of success for cases going to the CCMA / Bargaining Council or other litigation? And fearful about how you are going to fare under pressure if you are put in the hot seat?

• Worry about increasing signals that an employment relationship may be breaking down , such as rising absenteeism, sudden drops in performance, repeated communication breakdowns, and escalating interpersonal conflict?

It shouldn’t be this hard and take this much time to just manage your staff so that you can get back to running your business, should it?

No, it should not. So why does it happen?

The possible causes

Broadly speaking, the causes almost always relate to hidden gaps in HR processes, legal risk oversights (that can later become costly disputes), or workplace tensions that escalate because issues remain unstructured or are not timeously dealt with.

Factors contributing to this could include -

• inconsistent documentation, incomplete or outdated employment contracts

• lack of policies, or unclear, over-complicated (generic) policies that do not fit your environment and the resources you have available to practically implement and enforce them

• unclear decision trails, governance lapses (ambiguous decision protocols and documentation practices, poor privacy handling)

• poor communication

• conflict aversion amongst management

• lack of capacity – due to focusing on ‘compliance’ ticks when doing staff training, as opposed to fostering real, practical skills

Would you not rather like …..

As a business owner / CEO / MD:

• a reduction in escalation and litigation risk / legal exposure

• fewer disputes

• improved defensibility

• cost savings for your business

• operational efficiency and fewer disruptions

• increased productivity and streamlined operations

• demonstrative compliance

• reduced absenteeism

• effective performance management

As a People Manager:

• clearer compliance workflows and streamlined HR processes and documentation

• clearer defensible records

• faster case resolution

• fewer grievances

• being able to prevent small disputes from becoming organisational risks

• trained and skilled line managers who are conflict-literate and can resolve issues before they escalate

• support and practical know-how when you have to venture into ‘legal’ territory to resolve a staff dispute

What is standing in your way? What are the obstacles between your current (less-than-ideal) situation and a more desirable state of affairs? Which of the contributing factors above ring true for your organisation? Are there others? And how can you remove these obstacles as easily as possible?

Risk strategy to prepare for legal/employment-related challenges

Our strategy is a three-step process of simple changes that will lower your legal risk around people management. Removing the obstacles you currently experience requires translating legal- and labour law principles into practical, defensible HR actions and turning employment relations tensions into structured solutions.

1.         A solid basis: pre-emptive measures. It all starts here.

• Audit internal policies, contracts, protocols, SOPs, rules – focused, practical reviews to identify weak points (operational, legal and record-keeping / governance).

  
  

• Determine precise, implementable fixes:

  • Review and update contracts and policies (ensure clauses align with recent case law and legislation), standardise and customise contracts, and make sure policies are workable and enforceable in your environment - not generic, overly complicated templates that your staff will never read. This will reduce disputes and improve defensibility.

  • Greater scrutiny of contractor vs employee status — audit contingent workforce arrangements and adjust contracts to limit misclassification liability.

  • Implement structured disciplinary and performance processes (document investigations, timelines and right-to-reply opportunities).

  • Strengthen dispute prevention through targeted training and early mediation to reduce escalation and litigation risk.

  • Training / retraining for management and staff: targeted, practical training (not just a tick on a register) relating to conflict management, handling grievances, initiating and chairing enquiries. Targeted labour law training is an investment that lowers dispute risk and improves operational efficiency. We believe in practical training for HR and managers that covers managing day-to-day discipline, conducting enquiries, evidence handling, performance management and conflict literacy — taught through real-case exercises for immediate skills transfer. This leads to faster case resolution, fewer grievances and clearer, defensible decision-making.

• Update technological and administrative measures to ensure compliance. Make sure you have an Acceptable Use policy for emerging technologies such as social media and AI and that your staff are fully aware of these.

Everything does not need to happen at once – one or two focused changes now, can materially reduce litigation risk.

2.         Meeting internal disputes efficiently

When an issue does arise or a challenge is raised, the next step is to build on the basis you have in place, and to utilise this to respond, or to prepare properly to meet/defend it.

This will include:

• timeous action, early intervention (document any concerns and act quickly)

• investigation, gathering facts, examining all sides

• conflict management, structured mediation/facilitation to restore working relationships and to de‑escalate conflict: diagnose and intervene

• following existing protocols and processes as necessary

• getting advice, making strategic decisions from the start – including consulting the right legal expert and keeping in mind that most disputes are extremely case-specific and that context is central to determining fairness

• documentation (paper trail), record-keeping, documented follow-up (clear documented outcomes, timelines and compliance checks; follow-through and support)

  
  

3.         External dispute resolution / litigation

Success at this stage is based on the first two levels. Whether it is appearing at the CCMA / Labour Court / Civil Court / Criminal Court, or being served with Compliance Orders or queries from the Information Regulator, it all comes back to your internal controls and how these have been applied by your staff.

Again - get strategic (and specialist) advice sooner rather than later. There are legalities and technical issues at play and early choices in how you start out defending a matter, can make or break a case. And having expert support to guide you during the preparation stage, consulting with witnesses and the like, provides peace of mind.

Get started, with the right support

Start at the beginning. Get your house in order. Invest in the basic, pre-emptive steps first.

You will be surprised how many potential disputes are resolved by having proper contractual clauses, workable policies, practical training and strategic measures. Consider a targeted review to secure your processes and reduce future risk.

Specialised advice and support to businesses on employment-related matters, covers a broad spectrum, including contract- and policy drafting, dispute resolution, legal risk management and training. The goal is to firstly help organisations align their policies and practices with South African labour laws, in a way that makes sense for their environment. No two businesses are the same, and proper labour law advice should reflect this diversity. Whether you operate a small enterprise or a large corporation, the legal challenges you face will differ. Expert consultants also help businesses anticipate legal challenges before they arise.

When looking for legal support, keep the following in mind:

• Labour law is a specialist field

• Experience counts - “been there, done that, can see it coming” goes a long way

• Look for reputation and references

• Generic templates are not specific to your environment and won’t address your specific risks adequately (compliance ≠ efficiency)

• Training should be targeted and practical, not just a tick on a register

• Ongoing support and availability - turnaround times matter, urgent issues need urgent responses

Building a partnership for long-term success

It is never too late to start the turn-around process to get your house in order for better outcomes around staff management, handling disputes and mitigating your legal risks. Just take the first step – but do so with insight and focus on what you want to achieve, and get the right experts to support you in this.

© Judith Griessel