In terms of South African labour law principles, employers may not withhold an employee’s salary simply because disciplinary action is pending. Employees earn remuneration for work already performed, and the Basic Conditions of Employment Act (BCEA) requires employers to pay employees at the agreed intervals. Section 34(1)(a) further prohibits deductions from salary unless the employee agrees in writing, or the deduction is required or permitted by law. Withholding pay because a disciplinary hearing is pending is not a permitted deduction under the BCEA.
Suspension Is Precautionary, Not Punitive
A precautionary suspension is intended to protect the integrity of a workplace investigation, not to punish an employee. Since the employment relationship remains active, employers must continue paying full salary during a precautionary suspension. In Shoprite Checkers (Pty) Ltd v Mofokeng (2020) 41 ILJ 416 (LAC), the Labour Appeal Court emphasised the difference between precautionary and punitive suspensions. It confirmed that employees must be paid during a precautionary suspension unless a lawful contractual basis for unpaid suspension exists. Similarly, in Long v South African Breweries (Pty) Ltd and Others (2019) 40 ILJ 965 (CC), the Constitutional Court held that precautionary suspension generally does not amount to an unfair labour practice because the employee continues to receive their full remuneration. Accordingly, employees should not be financially penalised before any finding of guilt.
When May an Employer Withhold Pay?
Exceptions to the rule of full pay during suspension are narrow and strictly regulated
- Contractual or policy-based unpaid suspension
Where an employment contract, collective agreement, or disciplinary code explicitly allows unpaid suspension as a disciplinary sanction, it may be used, but only after a fair disciplinary process, not before.
- Employee-caused delays
Courts have permitted unpaid suspension only in exceptional cases where the employee unreasonably delays the disciplinary process without valid cause. In Strydom v ArcelorMittal South Africa (J1764/2023; 2024) 45 ILJ 931 (LC), the Labour Court accepted unpaid suspension because the employee repeatedly caused unjustified postponements. However, this remains a fact-specific and rare exception. Employers must keep detailed records of all postponements and demonstrate that delays were caused by the employee. Operational challenges, client suspension of payments, or unresolved allegations do not justify unpaid suspension.
What If Pay Has Already Been Withheld?
If an employer has already withheld pay during a disciplinary process, the situation should be corrected immediately. The employer must assess whether any lawful basis existed, repay the withheld remuneration if no basis existed, and communicate transparently with the employee and document corrective actions. Failure to remedy this may expose the employer to statutory claims under the BCEA, breach-of-contract claims, or unfair labour practice disputes.
Legal Risks of Unlawful Pay Withholding
Unlawfully withholding pay may result in BCEA section 73A referrals to the CCMA for unpaid salary disputes, breach-of-contract claims, unfair labour practice claims under the Labour Relations Act (LRA), and harm to employee morale, trust, and the employer’s credibility.
Practical Recommendations for Employers
Employers are urged to always maintain full pay during precautionary suspension unless a clear, lawful exception applies; ensure disciplinary and HR policies clearly outline when unpaid suspension may be used (only post-disciplinary sanction, not pre-emptively); avoid unnecessary delays in disciplinary matters; communicate that suspension is not punitive, but a temporary precautionary measure; and ensure all actions comply with the BCEA, LRA, and established case law on the topic.
Conclusion
Paying employees during disciplinary processes promotes fairness, protects employee rights, and ensures compliance with statutory obligations. Employers who follow these principles minimise legal risk and strengthen trust and transparency in the workplace. Suspension pending a disciplinary hearing must be with full pay, unless a narrow, legally recognised exception applies.
