Process Doesn’t Start at the Hearing: It Starts at the First Conversation

Why early intervention is the most underrated risk-control tool in labour law

Every week I see the same pattern play out: a workplace issue that could have been resolved with an early, well-managed conversation ends up as a formal dispute — often at the CCMA — because the organisation waited too long to engage meaningfully.

And here’s the key point: South African labour law doesn’t punish employers for having problems. It punishes them for handling problems unfairly — especially procedurally.

Section 188 of the Labour Relations Act (LRA) is the starting point: a dismissal (that isn’t automatically unfair) is unfair unless the employer proves a fair reason (conduct, capacity, or operational requirements) and a fair procedure. 

1. The “cost” of delay is usually procedural

Procedural unfairness isn’t only about what happened at the disciplinary enquiry. It often begins earlier:

• No clear counselling trail

• No documented expectations

• No fair opportunity to improve

• Inconsistent treatment

• Long delays with no explanation

Even where misconduct or incapacity exists, employers can still be exposed if they can’t show a coherent, fair process.

2. The modern direction: practical fairness, not courtroom theatre

The Labour Court has repeatedly warned against importing a criminal-trial model into the workplace.

In Avril Elizabeth Home for the Mentally Handicapped v CCMA, the Court criticised rigid “criminal justice” formalism and emphasised that workplace discipline can be more informal — but must still be fair (in substance and basic procedure). 

That principle is echoed and modernised in the Code of Good Practice: Dismissal (2025), which expressly states it is intentionally general and recognises departures may be justified depending on context and workplace realities. 

3. The new Code (2025) makes early intervention more important — not less

The 2025 Code repeals the older Schedule 8 approach and consolidates guidance for dismissals relating to misconduct, incapacity and operational requirements. It also emphasises mutual respect and expeditious resolution of disputes. 

If you’re in HR or leadership, the strategic takeaway is simple:

The earlier you address risk, the less formal your intervention needs to be. The later you address it, the more legally exposed you become.

4. A practical framework HR can deploy this week

Here’s a simple “early intervention” framework that aligns with the fairness logic in the LRA and the Code:

Step 1: Diagnose the category early 

Is this conduct (misconduct), capacity (performance/ill-health/incompatibility), or operational needs? Section 188 forces this classification because fairness is assessed by reference to these grounds. 

Step 2: Put expectations in writing 

Not legal letters. Clear workplace communication that states what is expected, what was observed, and what improvement looks like.

Step 3: Give a real opportunity to respond and improve 

Fairness is not a tick-box. If the employee had no meaningful chance to respond or adjust, you will struggle later.

Step 4: Record. Record. Record. 

Not for “gotcha” purposes — but because the burden often shifts to proof.

Closing thought

Your best defence at the CCMA is not the chairperson, the initiator, or the lawyer. It’s the quality of the first conversation — and what you did immediately after it.

Stay informed, stay compliant, and stay ahead of workplace change by joining the Mid-Year Labour Law Update 2026 (#MLLU2026), presented by Jonathan Goldberg and the expert GBS team. This practical and highly relevant labour law event will unpack the most important Labour Court, Labour Appeal Court, Constitutional Court, and CCMA decisions from the first half of 2026, together with key statutory developments, NEDLAC proposals, and emerging workplace risks. With live sessions in five cities, online attendance options, 100+ updated case summaries, 6 CPD points, valuable take-home resources, and 6 months’ access to the MLLU/ALLU Bot, MLLU2026 is designed to help employers, HR, ER, IR, and legal professionals prepare confidently for the second half of the year. The MLLU/ALLU Bot is trained on case summaries and findings from recent Mid-Year and Annual Labour Law Update sessions and gives delegates practical post-session support, including help with policy drafting, checklists, case lookups, and summaries. With more than 610 delegates attending #MLLU2025, the Mid-Year Labour Law Update is one of the biggest and most relevant labour law updates in South Africa. Register now to secure your place.

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