SUSPENSION – PRECAUTIONARY OR PUNITIVE – KNOW THE DIFFERENCE! (Part 2)

Last week we looked at what constitutes a precautionary suspension as a result of the question raised by a number of MISA members namely ‘My employer suspended me from work, is this permissible?’ Once this question is answered in the positive, inevitably the next questions, ‘Is suspension with or without pay?’ and ‘Should I not be heard prior to being suspended?’ are bound to follow.

As promised, we will now highlight the difference in terms of punitive suspension.

Punitive Suspension

In the case of Koka v Director-General: Provincial Administration North West Government (1997) 7 BLLR 874 (LC), Landman AJ extensively dealt with the difference between suspension as a punitive measure and suspension as a holding operation. The distinguishing factor, it was held, is to consider the intention of the employer. On the one hand, if the suspension was intended to assist the employer in any way and not to punish the employee, it will most probably be suspension as a holding operation, i.e. a precautionary suspension; on the other hand, if the intention was however to punish the employee, the suspension will most probably be a punitive suspension.

A punitive suspension is a punishment and a sanction imposed on the employee who has already been found guilty of misconduct or in breach of a term or condition of employment subsequent to a disciplinary hearing. There would already have been an internal investigation surrounding the misconduct or any other conduct of the employee, which has prejudiced the employer or put the employer at risk. Following this investigation, the employer would have subjected the employee to a disciplinary hearing. During the disciplinary hearing the employee would have had an opportunity to state his/her case, have the right to defend the charges levelled against him/her and have the right to present evidence in his/her defence. Accordingly, the employee exercises his or her right in respect of the audi alterum partem rule. If the Employee is found guilty, then punitive suspension is a sanction which can be imposed on the Employee as an alternative to dismissal.

Suspension Without Pay – Only with Agreement

As mentioned previously in part 1, employees may only be suspended without pay if they agree. An example would be, suspension without pay as an alternative to a dismissal. In County Fair v CCMA & Others [1998] 6 BLLR 577 (LC) and South African Breweries Ltd (Beer Division) v Woolfrey & Others [1999] 5 BLLR 525 (LC), it was held that suspension without pay is a permissible disciplinary penalty where appropriate.

It is however recommended that such a sanction is subject to the employee signing a sanction by agreement letter. An employee can be suspended without pay only in circumstances where dismissal would be justified, were it not for mitigating factors. If suspension is imposed as a disciplinary sanction, the ordinary requirements of substantive and procedural fairness must still apply, as mentioned above.

Recourse – Sanction short of dismissal

An employee who has been suspended without pay and without consent does have recourse. In Nohe & another v Maswika Stones t/a Tombstones Land (2010) 19 CCMA 6.4.1, at the CCMA the arbitrator, Boyce, took a different approach to the interpretation of a suspension in terms of section 186 (2)(b). In this specific matter both the applicants referred a dispute for unfair suspension. They were however suspended with full pay awaiting a disciplinary hearing. Boyce interpreted section 186 (2)(b) of the Labour Relations Act (Act) as follows:

“the ‘unfair suspension’ embodied in section 186(2)(b) of the Act precedes the words ‘or any other disciplinary action short of dismissal in respect of an employee’. The word ‘other’ in the said section can only mean that the Legislature regards ‘unfair suspension’ as but one type of ‘unfair disciplinary action short of dismissal’.

Had the Legislature intended that any suspension could (if unfair) amount to an unfair labour practice, it would surely have dealt with suspension on its own in a sub-paragraph of section 186(2). The Legislature, in other words, would not have linked the words ‘unfair suspension’ to ‘unfair disciplinary action short of dismissal’ by using the words ‘any other’, if it did not regard the ‘unfair suspension’ referred to in section 186(2)(b) of the Act, as but one type of ‘unfair disciplinary action short of dismissal’.

What this means is that a suspension which is not ‘disciplinary action short of dismissal’ cannot amount to an unfair labour practice in terms of section 186(2)(b) of the Act. The ‘disciplinary action’ which is envisaged by section 186(2)(b) of the Act, is a form of punishment, or a penalty (such as a written warning, suspension from work for a period of time, demotion, etc.) which is imposed on an employee by an employer for some sort of misconduct.” (Own Emphasis)

The suspension of the two applicants in this specific dispute was there for precautionary and not punitive as their suspension did not amount to ‘disciplinary action’.

Opportunity to be heard prior to punitive suspension

When an employee is suspended and the suspension takes the form of a punitive measure, especially when wages are withheld, an opportunity to be heard must be afforded to the employee prior to such a suspension.  

The reason can be found in both the award of Boyce who held that punitive suspension is envisage in Section 186(2)(b) of the Act as it amounts to ‘disciplinary action’. Secondly Schedule 8 – Code of Good Practice: Dismissal, specifically, item 4, gives guidance and require an employer to conduct an investigation prior taking disciplinary action against an employee.

These guidelines provide that there should at least be an investigation and some sort of conversation/report or disciplinary enquiry, as consent to suspension without pay is mandatory.

Conclusion

Your employer may suspend you without pay, that is punitive suspension, should you be found guilty of misconduct as a sanction short of dismissal. Fairness does however require an investigation; an opportunity to be heard and consent.  

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