CAN SUSPENSION LEAD TO AN UNFAIR LABOUR PRACTICE?

Employees are often placed on suspension pending a disciplinary inquiry. A suspension allows the employer to investigate the suspected or alleged misconduct and to decide whether disciplinary action should be taken against the employee. Employees are often also placed on suspension as employers fear that they would interfere with the smooth running of such an investigation.

There are two kinds of suspension recognized, namely a precautionary suspension and a punitive suspension. A precautionary suspension takes place pending a disciplinary inquiry while a punitive suspension takes place after the fact and as an alternative to dismissal. 

It is important to note that a precautionary suspension is with pay. It is therefore in the best interest of the employer to conduct a speedy but thorough investigation into the employee’s misconduct so as to ascertain if disciplinary action will take place, and if so when.

A decision to suspend an employee should not be taken lightly and should depend largely on the circumstances and nature of the alleged misconduct. An employee should be suspended when there is a prima facie reason to believe that the employee has committed serious misconduct and when there is some objectively justifiable reason for excluding the employee from the workplace.

The suspension has a detrimental impact on the affected employee and may prejudice their reputation and job security. It is therefore important that suspensions are based around substantively valid reasons and fair procedures before they are implemented. Employees should be given an opportunity to state their case before being suspended and these factors need to be taken into account.

Mogothle v Premier of the North West Province & another [2009] 4 BLLR 331 (LC)

In Mogothle v Premier of the North West Province & another [2009] 4 BLLR 331 (LC), it was held that the suspension of an employee is tantamount to an ‘arrest’ and should only be used when there is reasonable concern that the employee will interfere with investigations or pose some other threat.

Tungwana/Robben Island Museum (2009) 18 CCMA 6.4.2, reported in Butterworths [2009] 11 BALR 1178 (CCMA)

In Tungwana/Robben Island Museum (2009) 18 CCMA 6.4.2, reported in Butterworths [2009] 11 BALR 1178 (CCMA), the commissioner found that there was no prima facie reason for the employer to believe that the employee had committed serious misconduct. The employer had no reason to exclude the employee from the workplace and a suspension under the circumstances amounted to an unfair labour practice. The employee was awarded six months’ salary as compensation for the unfair suspension.

On the other hand, fair suspension without pay can be an alternative to a sanction of dismissal. In this regard, the suspension is viewed as an attempt to correct the behaviour of the employee. This can be seen as a form of progressive discipline where appropriate.

It, therefore, becomes clear that employers should not turn a blind eye to all the surrounding circumstances. When making a decision on whether to suspend an employee as an unfair suspension can lead to an unfair labour practice. 

Contact Invictus on 0861 737 263 for any queries and assistance regarding the application of suspension. We will assist with conducting your inquiries.

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