2019-06-26 | Monique Cooper

Item 4 of Schedule 8 of the Labour Relations Act requires an Employer to conduct an investigation prior to taking disciplinary action and in order to do that an employer may suspend an employee pending a hearing. S186 (2) of the Labour Relations Act states that suspension of an( employee could be unfair and as a result be rendered an unfair Labour Practice.

S186 (2) (2) of the Labour Relations Act provides: ‘Unfair Labour Practice’ means any unfair act or omission that arises between an Employer and Employee involving, (b) the unfair suspension of an employee or any other disciplinary action short of dismissal in respect of an employee. 

Suspension in terms of s 186 (2) includes both precautionary as well as punitive suspensions. In Koka v Director General: Provincial Administration North West Government this position was confirmed. Precautionary suspension is usually imposed as a safeguard in order to preserve the integrity of an ongoing investigation into an alleged misconduct prior to a finding of guilty, whereas punitive suspension is imposed as a sanction short of dismissal and is implemented after a finding of guilt.

For suspension to be fair, it must meet the requirements of both substantive and procedural fairness.

In Mogothle v Premier of the North West Province & another 1, the Labour Court noted that suspension of an employee pending an inquiry into an alleged misconduct is equivalent to an arrest, and should therefore be used only when there is a reasonable apprehension that the employee will interfere with the investigations or pose a threat of some kind.

It follows that it is only in exceptional circumstances that the Employee should be suspended pending a Disciplinary Enquiry. The Employee suffers palpable prejudice to reputation, advancement and fulfilment. These limited reasons for suspension and aforementioned prejudice make a compelling case for Regulation 2.

It is required by the employer to continue to remunerate an employee whilst on precautionary suspension. In Sappi Forests (Pty) ltd v CCMA3, the Labour Court held that, it would be unfair for an employer to suspend an employee without pay. Such suspension would also constitute a breach of contract. 4

One of the only exceptions to the aforementioned is when suspension is without pay is used as a disciplinary sanction, the court in Country fair v CCMA5 found this to be permissible, provided that the suspension is for a reasonable period.

What is a reasonable period for precautionary suspension?

In the private sector there are no steadfast rules in relation to what constitutes a ‘reasonable time’ period, unlike within the public sector. Different departments within the public sector are “governed” by different collective agreements stipulating what a reasonable period is deemed to be. However in the private sector, though slightly less rigid, there are many cases which serve as precedent in guiding both Employer and Employee in relation to what the courts regard as reasonable.

The norm and / or practice is that thirty (30) days is “regarded” as a reasonable period of suspension pending a Disciplinary Enquiry, it is ‘normal practice’ that the Enquiry will be conducted within that thirty (30) day period or at least by the 30th day.

The position is similar in the public sector, for example the Department of Education’s Collection Agreement Schedule 2, section 17 it states that an Employer may suspend an educator on full pay for a maximum of three (3) months. It states further if an educator is transferred or suspended, the Employer must do everything possible to conclude a Disciplinary Enquiry within one (1) month of the suspension or transfer.

Further the Presiding Officer may decide on any further postponement and such postponement must not exceed ninety (90) days from date of suspension.
Fairness requires that an employee possess a certain degree of knowledge upon which a suspension is based. This requires that an employer demonstrate reason to believe that an employee engaged in serious misconduct.

The justifiability of a suspension rests on the existence of a prima facie reason to believe that the employee committed a serious misconduct.

Suspensions have also been declared unfair where an employer has not complied with policies, collective agreements and regulations relating to suspensions. 6

In terms of the Constitutional Court Judgement in Long v SAB , the Constitutional Court has recognised that there is no need to provide an Employee with the opportunity to make representations prior to the Employee’s suspension provided that the suspension is on full pay and that the suspension is implemented as a precautionary measure.

Of course the Constitutional Court did underline the fact that such suspension must be for a reasonable period and not an unreasonable period.

Long however was not a Public Servant, but rather an Employee in the Private Sector.

Public Servants have certain rights particular to Collective Agreements and/or Policies.

In summary, not all forms of misconduct justify suspension. Whether or not a certain conduct would justify exclusion from the workplace is based on the circumstances and merits of each case. The suspension when deemed appropriate in the circumstances must be with full pay and for a reasonable period.

When a suspension is deemed to be unfair, the Commission for Conciliation Mediation and Arbitration and Bargaining Councils are clothed with jurisdiction.

1 [2009] 4 BLLR 331 (LC)

2 Article by Professor Halton Cheadle, 2006 (27 ILJ 663 at 683 to 684)

3 [2009] 3 BLLR 254 (LC)

4 HOSPERSA @ another v MEC for Health, Gauteng Provincial Government [2008] 9 BLLR 861 (LC)

5 [1998] 6 BLLR 577 (LC)

6 Marcus v Minister of Correctional Services & Others [2005] 2 BLLR 215 (SE).

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