In South African labour law, the default position is well established, namely that precautionary suspension pending disciplinary action is ordinarily implemented on full pay. An employee who remains employed but is instructed not to work does not lose the right to remuneration merely because allegations are under investigation. Withholding remuneration during suspension alters the legal nature of that suspension and is generally permissible only where there is a clear and lawful basis in contract, collective agreement, disciplinary code, or statute. Where remuneration has already been withheld, the enquiry shifts to the lawfulness and fairness at inception, as well as the employer’s potential exposure under the Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Labour Relations Act 66 of 1995 (LRA).

The Interaction Between the BCEA and LRA

The BCEA requires employees to be paid in terms of their contract. There is no general right to withhold pay during disciplinary processes. In conjunction therewith, the LRA regulates fairness. Unpaid suspension may constitute an unfair labour practice. Courts assess both lawfulness and fairness at the time of suspension, and not after the disciplinary outcome. In Long v South African Breweries (Pty) Ltd and Others [2019] ZACC 7, the Court confirmed that precautionary suspension is typically lawful because it is on full pay. Removing pay may render it unlawful unless properly authorised.

When is Unpaid Suspension Lawful?

Unpaid suspension is only lawful in limited circumstances, such as:

  • Where there is a clear contractual provision, collective agreement, or disciplinary code allowing it
  • As a disciplinary sanction after a fair process
  • In exceptional cases where delays are caused by the employee

Barring these circumstances, any withholding of pay by an employer pay is likely unlawful and unfair and would not pass judicial scrutiny.

Key Risks for Employers

Unlawful unpaid suspension can lead to:

  • Repayment of withheld salary (often with interest)
  • Unfair labour practice findings
  • Breach of contract claims
  • Urgent Labour Court applications
  • Reputational damage

It is advisable for employers to ensure that they have proper suspension procedures and clauses in place for their employees, as to mitigate the abovementioned risks. In practice, our courts have recognised that deviations from paid suspension procedures are a common occurrence, but they have expressed their discontent with these deviations. For example, in Mogothle v Premier of the North-West Province and Another (J 2622/08) [2009] ZALC 1, the Court reaffirmed that deviations from paid suspension require proper justification.

Best Practice

It is advisable for employers to:

  • Treat unpaid suspension as a last resort
  • Ensure a clear legal basis before withholding pay
  • Keep precautionary suspension on full pay
  • Use unpaid suspension only as a sanction after due process or where clearly authorised
  • Maintain proper documentation and consultation

Conclusion

The governing principle in South African labour law remains firm. Precautionary suspension is ordinarily on full pay, and withholding remuneration is permissible only within narrowly defined, lawful parameters. Legality and fairness are assessed at inception, and retrospective outcomes do not automatically cure an unlawful decision. Employers who implement unpaid suspension without clear authority expose themselves to real legal and financial exposure. A cautious, well-documented approach is essential.