An employer must conduct an investigation before taking disciplinary action against an employee, and to do that, the employer may suspend an employee pending a disciplinary inquiry.
However, suspensions can be open to abuse, and employers should be cautious about arbitrarily suspending employees or suspending employees for unreasonable periods.
Suspending an employee may be an unnecessary financial burden on an employee as well as unfair. It could constitute an unfair labour practice in section 186(2)(b) of the Labour Relations Act.
There are two types of suspension, namely, punitive and precautionary
There are, however, three main points of consideration between the two types of suspensions, being, remuneration; the circumstances when precautionary and punitive suspension can be imposed; and the audi alterum partem rule as it pertains to the employee having the right to make representations on why he or she should not be suspended.
A precautionary suspension, also known as a preventative suspension, is imposed when an employer anticipates that the employee might have misconducted or breached a term or condition of his or her employment agreement or has done something which may result in disciplinary action.
The precautionary suspension is imposed for the employer to investigate whilst ensuring that the employee does not interfere with the investigation.
In Long v South African Breweries (Pty) Ltd and Others (CC) (unreported case no CCT61/18, 19-1-2019), the Labour Court found that there was no requirement in law that an employee is allowed to be heard before being placed on precautionary suspension. All that is required, according to the Labour Court, is that there is an ongoing investigation and that the suspension seeks to protect the integrity of such a process.
The employee is not being disciplined if the employee is suspended on a precautionary basis, the employee is simply removed from the workplace as an interim measure to prevent possible interferences in an internal investigation, and hence the employee, by law, should receive their full pay whilst being on suspension.
However, there are exceptions to this, In Msipho and Plasma Cut (2005) 26 ILJ 2276 (BCA), the employee was suspended on full pay pending a disciplinary inquiry into alleged misconduct. However, the inquiry was postponed at the employee’s request, and the employer subsequently failed to pay the employee for the 6-week postponement.
It was held that applying the principle that employees are usually entitled to their full pay while on suspension to situations where suspension is extended at the request of the employee would be unfair to employers; it was ultimately held that the employee was accordingly not entitled to be paid for the additional period of suspension.
A punitive suspension means that the suspension is a punishment and is a sanction imposed on the employee who has already been found guilty of misconduct or is in breach of a term or condition of their employment after a disciplinary hearing.
In the circumstances of a punitive suspension, the internal investigation surrounding the misconduct or breach of terms of the employment agreement or any other conduct by the employee which has prejudiced the employer or put the employer at risk has already been completed.
Following the investigation, the employer must hold a disciplinary hearing, and the employee must have the right to defend the charges levelled against them and have the right to present evidence to show, if they so allege, that they are not guilty of the charges. Therefore, the employee exercises his or her right in respect of the audi alterum partum rule.
If the employee is found guilty, the punitive suspension is a sanction that can be imposed on the employee as an alternative to dismissal.
When a suspension is permissible
Employees should only be suspended when the following 2 criteria are met. There are prima facie grounds for believing that the employee has committed serious misconduct and that there is some objectively justifiable reason for excluding the employee from the workplace. The fact that an employee may be guilty of serious misconduct does not justify suspension pending an inquiry.
The employer should also consider the second criterion to conclude whether suspension is appropriate. Employers can usually justify the suspension of the offending employee in cases of theft, fraud, sexual harassment, and assault. The justifiable reason for excluding employees in these instances could be to ensure that the workplace is safe for the remaining employees or to ensure the safety of company property.
In most cases, the suspension is not intended to be punitive in itself. The Labour Court has noted that the suspension of an employee 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 some other threat.
Challenging the decision
In an unreported Labour Court decision of South African Post Office v G S Jansen and others (Case No JR832/07), the employee was suspended with pay, a disciplinary inquiry was held within 10 days of the suspension, and the employee was issued with a final written warning. The employee subsequently referred an unfair labour practice dispute to the CCMA, challenging his unfair suspension.
The commissioner found the suspension to be unwarranted. On review, the Labour Court held that the commissioner correctly found that the suspension was unfair; the judge was of the view that employers should be strongly cautioned on the issue of unfair suspension, as suspensions might have a detrimental impact on the affected employee’s reputation, advancement, job security and fulfilment. The court held suspensions should be based on substantive reasons, and fair procedures should be followed before the suspension.
A breakdown of trust
A common concern employers face is that if an employee is not suspended, the employer’s argument that the trust relationship has been broken is negatively affected. An essential principle in our law is that an employee, when accused, is presumed innocent until proven guilty. Therefore, whether the trust relationship has been broken due to the employee’s misconduct is only taken once the employee has been found guilty of misconduct after a disciplinary inquiry.
Considering the above, the non-suspension of an employee pending the conclusion of a disciplinary hearing should not adversely affect the employer’s argument that the trust relationship has been broken due to the employee’s misconduct.
Based on the above, it is evident that employers should not hastily resort to suspending employees when there are no valid reasons to do so, even when such suspensions are with pay, as they may be faced with an unfair labour practice referral at the CCMA where an award for compensation or a ruling may be made against them where it is found to be unfair.
The employer should apply the above criteria and considerations according to the circumstances of each case. If you are considering suspending an employee pending a disciplinary inquiry and unsure if it would be appropriate, please contact our offices at 0861 737 263 for guidance.