A delay in disciplinary action can create difficulties for employers, particularly where a lengthy investigation means that the underlying events occurred several years earlier. Although an excessive delay may raise questions of waiver, prejudice and procedural fairness, the passage of time does not automatically prevent an employer from taking disciplinary action or render a precautionary suspension unfair.
Case Study
In De Wet v CCMA and Others (C511/2023) [2025] ZALCCT 7, the Labour Court considered whether a substantial delay between the underlying events and the institution of disciplinary proceedings rendered the employee’s precautionary suspension unfair or amounted to a waiver of the employer’s right to discipline her. The employee was a senior manager of a public entity responsible for South Africa’s strategic oil reserves. In 2015, the entity entered into a transaction involving the sale of approximately 10 million barrels of strategic stock. The transaction was subsequently declared unlawful in High Court proceedings. The High Court criticised the conduct of the then acting chief executive officer and expressed concerns regarding the conduct of members of the management team, including the employee, in relation to their failure to alert the board to the transaction.
A later forensic investigation, completed in 2021, reportedly did not find that the employee had been directly involved in the transaction. It nevertheless concluded that she ought to have raised concerns with the board earlier, when she became aware of the relevant events.
The employee was suspended approximately two years after the later forensic investigation and approximately seven years after the underlying transaction. She was subsequently charged with misconduct and referred an unfair labour practice dispute concerning her suspension to the Commission for Conciliation, Mediation and Arbitration (“CCMA”). The employee argued that the employer had waived its right to discipline her by failing to act timeously the delay rendered the suspension unfair; and the suspension served no legitimate purpose because the investigative and fact-finding processes had already been completed. The commissioner rejected these arguments and found that the suspension was fair. The employee sought to have the award reviewed by the Labour Court. The Court dismissed the review application and upheld the award.
Delay and Waiver
The Court confirmed that delay does not, by itself, establish that an employer has waived its right to institute disciplinary proceedings. Waiver requires conduct that is clearly inconsistent with an intention to exercise the relevant right. The issue is therefore not simply whether the employer waited for a lengthy period, but whether its conduct, viewed objectively, demonstrated that it had abandoned its intention to pursue disciplinary action. On the facts of the matter, the employer had not been inactive. The period included further forensic work, High Court litigation and disciplinary processes involving other employees connected to the transaction. The employer’s conduct therefore indicated that it continued to address the broader issues arising from the transaction, rather than abandoning the matter altogether. The decision should not, however, be understood as establishing that any form of investigation or related litigation will automatically prevent a finding of waiver. Whether waiver has occurred remains a fact-specific enquiry. The employer’s conduct, the explanation for the delay and the surrounding circumstances must be considered as a whole.
Delay and Prejudice
A lengthy delay may also affect the fairness of disciplinary proceedings where it causes material prejudice to the employee’s ability to defend herself. Examples may include the unavailability or loss of witnesses, the destruction or loss of documents, fading memories or an inability to obtain relevant evidence. The employee in this matter argued that the delay rendered the proceedings unfair. The Court was not persuaded that the delay had materially impaired her ability to present a defence. The decision therefore reinforces the importance of demonstrating actual or material prejudice rather than relying only on the passage of time. This does not mean that an employee must always identify a specific lost document or witness before delay can be relevant. The length of the delay, the employer’s explanation and the effect of the delay on the fairness of the process remain relevant considerations. Employers should accordingly avoid treating the absence of proven prejudice as a complete answer to every delay complaint.
The Purpose of Precautionary Suspension
The Court also rejected the argument that a precautionary suspension necessarily becomes unjustified once the investigation has been completed. A precautionary suspension is not a disciplinary sanction. Its justification must be linked to a legitimate purpose, such as protecting the integrity of the disciplinary process, preventing interference with witnesses or evidence, or avoiding disruption in the workplace. The relevant question is whether the suspension remained reasonably necessary in the circumstances when it was imposed. The Court accepted that the conclusion of an investigation does not necessarily eliminate every risk. In an appropriate case, the employer may still be required to protect the integrity of the disciplinary hearing or to manage risks arising from the employee’s continued presence in the workplace. The judgment should not be read as meaning that the completion of an investigation, the sensitivity of a matter or its high public profile will, without more, justify suspension. The employer should be able to identify the specific purpose served by the suspension and should consider whether less restrictive measures could adequately address the risk.
Practical Implications for Employers
Employers should maintain a clear record explaining any delay between discovering alleged misconduct and instituting disciplinary proceedings, including the investigative or litigation steps taken during that period. Although delay does not automatically amount to waiver or render a suspension unfair, employers should assess and address any material prejudice to the employee’s ability to present a defence. They should also ensure that any precautionary suspension serves a clearly identified and legitimate purpose, such as protecting witnesses, evidence or the integrity of the disciplinary process, and should regularly reconsider whether suspension remains necessary and proportionate. Where appropriate, less restrictive measures should be considered. A precautionary suspension must remain just that: a protective measure, not a disciplinary penalty imposed before the employee has been afforded a fair hearing
The decision confirms that the passage of time does not automatically waive an employer’s right to discipline an employee or render a precautionary suspension unfair. The enquiry remains contextual. Employers must nevertheless explain the delay, demonstrate that they did not abandon the matter, address any material prejudice and identify the legitimate purpose served by the suspension.
