Employer side support
Labour Assistance for South African Employers
Labour assistance is practical, employer side help with the labour side of running a business: the contracts and forms that belong in place before anybody is appointed, the process to follow once something has gone wrong, and the work that keeps a dispute from turning into an expensive day at the CCMA or a bargaining council.
The short answer
There is no rate card for labour support, because what an employer needs on the day runs from a set of contracts to a matter already sitting at a bargaining council, and those are not the same piece of work. The route in is a call: say where your matter is, and what it takes can be worked out against that rather than against a form.
Before anybody starts. Employment contracts and application forms, so the terms are written down rather than remembered.
Once something goes wrong. A process that holds up, from the incident through the hearing to the outcome.
When it is referred. Support aimed at avoiding unnecessary cost at the CCMA or a bargaining council.
Where you are
The moments an employer picks up the phone about a labour matter
Nearly every labour problem that ends up costing an employer money was cheaper to solve earlier. The cards below are where employers actually call from, ordered from the matters that are still preventable to the ones where a clock is already running. The colour on each card marks which stage of the employment it belongs to.
Before anybody starts
Appointing somebody with nothing signed
The offer was made on the phone and the person started on Monday. Hours, duties, notice, probation and the disciplinary code are now whatever each side remembers them to be, and it is the employer who has to prove what was agreed.
What helps A written employment contract and an application form, in place before the first day rather than after the first dispute.
Before anybody starts
A rule that lives in a drawer
There is a policy on stock, on searches, on absence or on testing, and nobody has been shown it or signed for it. A rule the staff were never told about is difficult to enforce and harder to defend once somebody has broken it.
What helps Getting the policy issued, acknowledged and filed, so the rule exists in a form somebody else can read.
While they are employed
Something has gone missing
Stock, cash or information is short, and there is a suspicion but no facts behind it yet. This is where employers most often move too quickly, and a confrontation held before anything has been gathered usually costs the case rather than making it.
What helps Deciding what to gather first, and whether the matter needs an investigation before anybody is charged.
While they are employed
Warnings that will not hold
A verbal warning nobody recorded, a final written warning issued for something minor, or three warnings on one file with no dates on any of them. A progressive discipline record only counts for anything if it can actually be produced.
What helps Putting the record in order now, while it is still a record rather than an exhibit.
Once it has gone wrong
A hearing is set for next week
Charges have to be framed, notice has to go out in writing far enough ahead for the person to answer it, and whoever gathered the evidence should not be the person who decides. Most of what gets criticised afterwards is settled during this one week.
What helps Working through the notice, the charges and who sits where, before the hearing rather than after the award.
Once it has gone wrong
A referral has arrived
A form has come in from a bargaining council or the CCMA with a date on it. From here the matter runs on somebody else's timetable, and the file you are able to produce becomes the only version of events that counts for anything.
What helps Getting the file into a state that can be handed over, and knowing which parts of it are worth arguing.
The spine of it
How a workplace matter runs from the incident to the award
Every disciplinary matter follows the same spine, and an employer who knows which part of it they are standing in makes better decisions than one who is reacting. What follows is the shape of it, and the point on each step where employers most often lose ground without noticing.
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The incident
Something is reported, found at a count, or picked up in a reconciliation. The date it was discovered matters as much as the date it happened, because that is where the employer's own clock starts running.
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The facts
Gathering, before charging. Statements, records, access logs and counts, kept as they were found. Where nothing points anywhere yet, this is investigation work rather than disciplinary work, and treating it as the second costs you the first.
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The notice
The charge in writing, with enough time to prepare, and the right to representation and to an interpreter set out plainly. A surprising share of the findings that go against employers trace back to this single page.
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The hearing
The case is put, the employee answers it, and somebody who took no part in gathering the evidence decides. A record is kept throughout, because the record is the version a commissioner will eventually read.
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The outcome
A sanction, or no sanction, with reasons attached to it. The reasons are the part that carries: a dismissal that was fair but never explained is far harder to defend than one with a paragraph standing behind it.
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The referral
If the matter is referred, conciliation comes first and arbitration after it. By that point nothing new can be added to the file, which is exactly why the five steps above are where a case is won or lost, long before anybody sits down to write an award.
The exposure
What a labour matter costs when the process was wrong
Two things drive that cost, and neither of them is the misconduct itself. The first is a clock that starts without asking anybody. The second is a procedural fault that was cheap to avoid and expensive to argue about afterwards. The figures below are the Labour Relations Act's own, not ours.
30 days
To refer a dismissal
The window an employee has to take an unfair dismissal dispute to the CCMA or a bargaining council, counted from the date of the dismissal itself.
Labour Relations Act, section 191
90 days
To refer a labour practice
The window for an unfair labour practice dispute, the kind that turns on promotion, demotion, benefits, training or a suspension, counted from the act complained of.
Labour Relations Act, section 191
12 months
The compensation ceiling
The most that may be awarded as compensation for an unfair dismissal, measured in the employee's own remuneration, and up to 24 months where the dismissal was automatically unfair.
Labour Relations Act, section 194
| The fault | What it looks like | Why it costs |
|---|---|---|
| No signed contract | The person started, and the terms were never written down | Every argument then opens with what was agreed, and the burden of showing a dismissal was fair rests with the employer. |
| An unpublished rule | A policy exists, and nobody has ever acknowledged it | A rule the employee was never told about is hard to enforce, and harder still to defend as a fair reason for dismissing somebody. |
| Charging before gathering | The accusation is put before anything has been collected | Evidence gathered afterwards looks assembled to fit, and whatever the confrontation moved or destroyed is gone for good. |
| Short notice of a hearing | A day's warning, no written charge, no time to prepare | Compensation can follow a procedural fault on its own, even in a matter where the misconduct itself was proved. |
| One person in both chairs | Whoever gathered the evidence also decides the outcome | The decision reads as settled before the hearing opened, which is precisely what gets looked for on review. |
| Nothing written down | A finding with no statements, no record and no reasons | There is nothing to hand over, so the whole matter comes down to the employer's word against the employee's. |
This page is general information about how labour matters run in South Africa, not legal advice. What your own matter needs, and who may appear for you at the CCMA or a bargaining council, is settled on a call rather than read off a web page.
What you are left holding
What the labour department puts in your hands
Paperwork you can produce, a process you can defend, and where an examination or an investigation forms part of the matter, findings in writing that came out of the same engagement rather than out of a second supplier.
Employment contracts
Written terms, issued before the first day. The cheapest document in this entire business, and the one most often missing when it is needed.
Application forms
The paperwork that starts an appointment properly, and the moment at which a criminal background check costs a fraction of an appointment gone wrong.
A read on where you actually are
Whether what is in front of you is still preventable, already a disciplinary, or running on somebody else's timetable. That answer changes the next move more than anything else does.
Cost avoided rather than argued
The aim is a matter that never has to be fought out at the CCMA at all. Where one does go, it goes with a file standing behind it.
Examination findings, presented
Where a polygraph examination forms part of the matter, the examiner presents what it found. CCMA presentation is already one of the kinds of case this practice takes.
An investigation where the facts are missing
Where nothing points anywhere yet, the investigation team does that work first, on the same engagement rather than as a separate appointment.
Questions
What employers ask before they call
The ones that come up first. Anything about the examinations themselves is answered on the polygraph testing page, and their published prices are on the pricing page.
What does labour assistance cost?
There is no published rate for it. A morning spent getting a contract and a policy into place, and a matter that is already down for arbitration, are two different jobs, and one figure covering both would be wrong in both directions. Phone the office, describe what has happened, and it can be worked out against what is actually there.
The examinations are the part of this business that does carry a published price list, and every figure on it is set out in full on the pricing page.
Is this for employers or for employees?
For employers. The paperwork, the process and the support all sit on the employer's side of the table, and pretending otherwise would help nobody.
An employee looking for help with their own dispute is better served by a union official, an attorney, or the CCMA itself, which assists people with referrals at no charge. Saying so plainly here saves a call that was never going to lead anywhere.
Do you represent me at the CCMA?
Who may appear for a party at the CCMA or at a bargaining council is set by the CCMA's own rules, and it turns on the kind of matter and the kind of representative. That is a question to settle on the call rather than to assume off a web page, and it is worth settling early because it shapes how the file is prepared.
What this practice does publish is CCMA presentation of polygraph findings: where an examination is part of the file, the examiner presents what that examination found.
Can I dismiss somebody for failing a polygraph test?
Not on the examination alone. A polygraph result is treated as one piece of evidence among others, and on its own it does not establish that somebody did the thing they are accused of. Where it carries weight is alongside the rest of the file: the count, the access record, the statements, and the accused person's own version of events.
That is the honest answer, and it is also the reason this service exists at all. An examination is worth commissioning when there is a case being built around it. It is worth very little when it is being asked to be the case.
Can I make a polygraph examination compulsory?
An examination needs the consent of the person being tested, and the sound place to arrange that is in the contract of employment or in a written policy the employee has acknowledged, rather than in a conversation on the morning of the test. A refusal on its own is not an admission of anything and should not be handled as though it were.
This is the clearest example of why the paperwork matters. The same request is routine where it was agreed to in writing at appointment, and a dispute where it was not.
How quickly can somebody help?
Labour matters carry deadlines that somebody else set, so the useful answer is that it is worth calling on the day rather than at the end of the week. A hearing already in the diary, or a referral that has already landed, is worked around rather than waited out.
What do you need from me to start?
Whatever exists. The contract if there is one, the policy if there is one, the warnings on file, any statements taken, the notice if a hearing has been set, and the referral form if one has arrived.
Where the honest answer is that none of it exists, that is useful information rather than an embarrassing one, because it names the first piece of work immediately.
Is any of this legal advice?
No. This page sets out how labour matters generally run in South Africa and where practical support makes a difference. It is not advice about your own matter. Some matters need an attorney, and that is far better established at the start than discovered at arbitration.
Next step
Say where your labour matter is, and hear what it takes
One call. Whether the answer turns out to be a set of contracts, a process to follow this week, or an examination and an investigation running alongside each other, you will know what you are dealing with before you commit to anything.