SUSPENSION – PRECAUTIONARY OR PUNITIVE – KNOW THE DIFFERENCE!

(Part 1)

The question: ‘My employer suspended me from work, is this permissible?’ is not an unknown phenomenon in the MISA Legal Department. Once this question is answered in the positive, the following questions, ‘Is suspension with or without pay?’ and ‘Should I not be heard prior being suspended?’ are bound to follow.

Today we will concentrate on precautionary suspension and will highlight the difference in terms of punitive suspension next week.

Precautionary Suspension

Fairness dictates that employers must follow a process prior subjecting an employee through a disciplinary hearing. This is in line with, and codified in, the Labour Relations Act 66 of 1995 (LRA), Schedule 8 – Code of Good Practice: Dismissal. Specifically, item 4, gives guidance and requires an employer to conduct an investigation prior taking disciplinary action against an employee.

Depending on the type of the alleged misconduct, the employee’s position with the employer and the circumstances surrounding the investigation; employers have discretion to suspend an employee during the investigation process. This is called precautionary suspension.

The purpose of a precautionary suspension is to ensure that an employee’s presence at the workplace does not obstruct the investigation and/or that the employee does not interfere with the gathering of evidence. The ideal is that an employee should only be suspended when there is a reasonable objective perception that an employee did commit the alleged misconduct and that the employee should, as a result, be excluded from the workplace.

The Labour Court holds a very strong view on suspension and the effect thereof. In Mogothle v Premier of the North West Province & another [2009] 4 BLLR 331 (LC) the Labour Court stated that “…the suspension of an employee pending an inquiry into alleged misconduct is equivalent to an arrest, and should therefore be used only when there is a reasonable apprehension that the employee will interfere with investigations or pose a threat of some kind”. (Own Emphasis)

• Fair or Unfair

The fairness, or unfairness, of a precautionary suspension must be measured against whether there is an objective link between the investigation and the suspension. Factors that should play a role are as follows: the type of misconduct; the employee’s disciplinary record, the internal Disciplinary Code/Policy and the period of suspension.

Depending on a number of factors, the suspension might be a breach of contract; should the employer act outside the internal Disciplinary Code/Policy; suspend for an unreasonable period and there seems to be no link connecting the employee with the alleged misconduct.

• Contractual obligations in respect of pay during precautionary suspension

It is vital to note that whilst an employee is suspended as a precautionary measure pending disciplinary action, the employee is still an employee and should therefore still be paid your daily/weekly/monthly remuneration. Should an employer unilaterally decide not to remunerate an employee during precautionary suspension, the Labour Court held that the employer will be in breach of contract.

In Sappi Forests (Pty) Ltd v CCMA & others (2008) 17 LC 1.11.83, reported in [2009] 3 BLLR 254 (LC), Judge Pillay ruled that “the position at common law has always been that an employer who suspends an employee without pay commits a breach of the contract of employment. An employer may suspend an employee without pay if the employee so agrees, or legislation or a collective agreement authorises the suspension.”

• Right to be heard

There used to be an understanding, based on a number of judgments such as SAMWU obo Dlamini and Others v Mogale City Local Municipality and Another [2014] 12 BLLR 1236 (LC); Mashego v Mpumalanga Provincial Legislature and Others (2015) 36 ILJ 458 (LC), that an employee must be given an opportunity to be heard and to make representation on the reasons why he/she should not be suspended.

The Constitutional Court did however over rule the Labour Court Judgments and held in Long v South African Breweries (Pty) Limited & Others that an employee is not by default entitled to an opportunity to make representations when the suspension is precautionary in nature.

An employee has the right to be heard in terms of the audi alteram partem principle during the disciplinary hearing.

Conclusion

The employer does have the right to suspend an employee for precautionary reasons and should at all times be reserved for more serious alleged misconduct. Fairness must always be the objective when an employee is suspended prior a disciplinary hearing.

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