SUSPENSIONS IN GENERAL

07 May 2010

By Wikus Nel Port Elizabeth branch Under what circumstances is the employer allowed to suspend an employee? It is important to know the answer to this question as any form of suspension must be fair and the employee is entitled to challenge a suspension in terms of the Labour Relations Act if he/she feels it is unfair. There are two types of suspension in labour law, the preventative suspension where disciplinary charges are being investigated against the employee and the employer wants to suspend the employee until the disciplinary hearing process has been completed. The second is the punitive suspension where a period of suspension from work, without pay, is imposed on the employee as a disciplinary measure. This article will focus on preventative suspensions. In terms of the Labour Court judgement in Mogothle v Premier of the North West Province & another , there are three requirements for a lawful suspension: The employer must have a justifiable reason to believe that the employee has committed a serious offence. The employer must have an objective and justifiable reason, based on the integrity of any pending investigation or any other relevant factor that would place the investigation or the interest of the parties in jeopardy, to deny the employee access to the workplace. The employer must give the employee an opportunity to state a case, as to why he should not be suspended before making the final decision to suspend. Most of the time suspension is not considered a problem as the employee may be dismissed at the end of a disciplinary process, and the focus of the matter is not so much on the employee's suspension, but the outcome of the disciplinary hearing. However, the following circumstances should always be taken into consideration before suspending an employee. To pay or not to pay? Suspensions must always be fair, under the circumstances, the employee must be paid or suffer no loss of benefits in order to avoid unilateral changes to the employee's terms and conditions of employment. Unless an agreement between the employee and employer provides otherwise. Generally the only time an employee may be suspended without pay is when a suspension is imposed as a disciplinary action, and then usually as an alternative to dismissal. Types of suspensions There are generally two types of preventative suspension: Transfer or re-assignment of duties Where the employee gets transferred to another work location, as a precautionary measure. Suspension with full benefits. Where the employee is not allowed to continue with his normal duties but must be available at a location acceptable and accessible for investigation purposes. Suspension notice A notice of suspension should be given to the employee in writing before or simultaneously with the disciplinary hearing notice. The suspension notice should contain brief reasons for the employee's suspension. The period of suspension Many times the question arises of how long may an employer suspend an employee without being procedurally unfair? Some disciplinary codes and procedures will make provision for the maximum length of a suspension. In "Lekaba v Minister, Department of Justice & Constitutional Development" the employer's business formed part of public services and their disciplinary code and procedure, contained in Chapter 7 of the Senior Management Service Handbook, required that a disciplinary enquiry be held within 60 days of the date of the suspension. The question that arose was what happens if the employer exceeds that 60 day suspension? What right does the employee have after the 60 days are over? The Court said that the employee could claim that the continued suspension constituted an unfair labour practice, in terms of section 186(2)(b) of the Labour Relations Act, or the employee could approach the Labour Court for an order instructing the employer to lift the suspension. The court ordered the employer to revoke the employee's suspension. Consequences of hasty suspensions Suspending an employee for a minor allegation of misconduct or even suspending an employee for an unreasonably long period might find you in the wrong as in SA Post Office Ltd v Jansen van Vuuren NO & others, (2008) 17 LC . Section 186 (2)(b) of the Labour Relations Act lists unfair suspensions under the definition of "Unfair labour practice". Thus employers should always exercise caution in suspending employees and not without good cause as unfair suspension may render an employer's actions procedurally unfair and thereby the employer may receive an order of re-instatement against him, from the CCMA or Bargaining Council. In summary, the courts will come down hard on employers who hastily resort to suspending employees when there are no valid reasons for doing so, or to keep employees indefinitely on suspension, even though such suspensions are on full pay. LabourNet consultants are specifically trained to assist companies with the suspension process and to limit the risk associated with embarking on this form of action together with the drafting of all documents. Contact your Labournet consultant directly or the Labournet Helpdesk on 0861 522 638 for assistance. Not yet a Labournet client, but would like to know more about our service and products, visit our Labournet website or send a mail to sales and they will contact you to set up an appointment. If you have a question for the author about this article or require any other information please email the Labournet Helpdesk. Disclaimer The information published in this article or newsletter is of general nature and should not be used without obtaining specific advice as to its application in your business or under your specific circumstances. Labournet will accept no liability if the information is used without first obtaining specific advice from one of our consultants