The unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.
As section 186(2)(b) refers to suspension together with ‘any other unfair disciplinary action short of dismissal’, it clearly includes both categories.
(1) Pending a disciplinary hearing, and
(2) Disciplinary action short of dismissal, as a sanction.
(1) Suspension pending a disciplinary hearing:
The following is required for a suspension pending a disciplinary hearing, not to be regarded as “Unfair Labour Practice”:
(-) An employee may be suspended as a ‘holding operation’ pending a disciplinary hearing, to enable the employer to investigate the alleged charges against the employee.
(-) Although a formal hearing is not required prior to suspension pending a disciplinary hearing, the audi alteram partem principle should be observed. The suspension notice, prior to a disciplinary hearing, should make provision for the employee to make any submission regarding her/his suspension by a certain date or time.
(-) The period of suspension stipulated in a collective agreement, or any other agreement, may not continue beyond such a period.
(-) Should it be unreasonably long or extended, its effect would be disciplinary in nature. The following criteria have been laid down for judging the fairness of a suspension under these circumstances:
‘ [T]he employee is entitled to a speedy and effective resolution of the dispute. Employers must not be allowed to abuse the process. The investigation must be concluded within a reasonable time taking all relevant factors into consideration and the employee must be informed without undue delay about the process steps that the employer is initiating. This may take the form of allowing the employee to return to his or her work or alternatively furnish this individual with a charge sheet summoning the individual to a properly constituted disciplinary hearing. The disciplinary hearing must be initiated within a reasonable time of the individual being suspended.’ (See Mabilo (1999) 20 IJL 1818 (LC) at para 17).
(-) Suspension without pay pending a disciplinary hearing, has been held to be an unfair labour practice.
(-) Summary suspension with pay, my not be unfair if the employer has a reasonable apprehension that a legitimate business interest would be harmed if the employee’s continued presence in the workplace. If there is no good reason for the suspension, or if the employee is not given an opportunity to be heard, it will be unfair.
(-) Where compensation is awarded for an unfair suspension, it may not be awarded together with reinstatement in terms of section 194(4) of the LRA.
(2) Suspension as a sanction:
(-) The Labour Court has held that suspension without pay is a permissible disciplinary penalty under appropriate circumstances. It has been held that the prohibition of deductions from an employee’s remuneration in terms of section 19 of the BCEA, does not preclude an employer from imposing a penalty of suspension without pay. (Koka v Director-General: Provincial Admin North West Government (1997) BLLR 874 (LC)).
(-) It is submitted that an employee can be suspended without pay only in circumstances where dismissal would be justified, were it not for mitigating factors.
(-) If suspension is imposed as a disciplinary sanction, the ordinary requirements of substantive and procedural fairness should apply. Since suspension is usually imposed as an alternative to dismissal, it would be advisable to follow this guideline (The Code of Good Practice: Dismissal -Schedule 8), regarding decisions to suspend an employee.
(-) However, it may only be imposed, if agreed. An employee may withhold consent, if the suspension is unreasonable.
Article by: Maretha van Rooyen
CEO Dispute Resolution Official – Durban