Item 4 of Schedule 8 of the Labour Relations Act requires that an employer must conduct an investigation prior to taking disciplinary action against an employee and in order to do that the employer may suspend an employee pending a hearing.
In Mogothle v Premier of the North West Province & another  4 BLLR 331 (LC) the Labour Court noted that the suspension of an employee, pending an inquiry into 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 investigations or pose some other threat.
Suspension pending disciplinary action is always as a rule on full pay unless the employee agrees to suspension without pay. In Sappi Forests (Pty) Ltd v CCMA & others (2008) 17 LC 1.11.83, reported in  3 BLLR 254 (LC), Judge Pillay ruled that “the position at common law has always been that an employer who suspends an employee without pay commits a breach of the contract of employment. An employer may suspend an employee without pay if the employee so agrees, or legislation or a collective agreement authorises the suspension.”
The employer is now faced with a situation where he is unable to take disciplinary action due to the Covid-19 lockdown, and the business is shut down completely. Should the employer continue to pay the employee that is on paid suspension?
This situation would be a supervening impossibility of employment, and it is not the employer’s fault that he/she cannot hold a disciplinary hearing. The employer should now, as with his/her other staff, apply for Covid-19 TERS benefits for the suspended employee until such time that it is possible to hold a disciplinary hearing.
If you are not deemed an essential service or a company that is able or permitted to operate under Level 4 lockdown Regulations, then there is no onus on the employer to remunerate the staff. The Regulations stipulated that where employers are able to pay their employees, then they should continue to pay, but this is not compulsory. An employer has no obligation to pay an employee during the lockdown if their business is closed.
In this scenario, an employee that was on paid suspension before the lockdown would benefit if the employer was forced to keep paying him/her wages, where other staff are not being paid.
In a situation, however, where the company is an essential service and/or receiving income, the normal rules apply to suspension with pay. The employer cannot, in this instance argue that due to COVID-19 and the lockdown that there is no onus on the employer to pay the employee.
Article by: Anesta Kruger
Dispute Resolution Official – Durban