Suspension in the workplace may be of two kinds, namely; suspension of an employee imposed as a precautionary measure pending disciplinary action or as a form of disciplinary penalty.
Section 186(2) of the Labour Relations Act states: “unfair labour practice means any unfair act or omission that arises between an employer and an employee. Subsection (b) of the Act mentioned above specifically deals with suspension. Section 186(2)(b) of this Act regards “the unfair suspension of an employee or any unfair disciplinary action short of dismissal in respect of an employee” as unfair labour practice.
When suspending an employee as a precautionary measure pending disciplinary action, the following must be taken into consideration in order for such action not to be regarded as an unfair labour practice. An employee may be suspended pending a disciplinary hearing to enable the employer to investigate the alleged charges against the employee. The precautionary suspension must be for a reasonable period if the employer bona fide believes that such action is necessary. It is important to take the audi alteram partem principle into consideration meaning “let the other side be heard as well”.
Although a formal hearing is not required prior to a suspension pending a disciplinary hearing, the suspension notice should make provision for the employee to make any submissions regarding the suspension. An employee suspended pending disciplinary action is entitled to his / her full pay and benefits. The suspension period must also not be unreasonably long or extended as the effect would be disciplinary in nature.
When suspending an employee in the form of a disciplinary penalty, the employer may suspend employees without pay if the parties have agreed to the same. This may either be when the contract was concluded or if collective agreements make provision for unpaid suspension. An employee may be suspended without pay where dismissal would be justified or when the employee agreed to unpaid suspension as an alternative penalty. If suspension is imposed as a disciplinary action, the ordinary requirements of substantive and procedural fairness should be applied. The guidelines of The Code of Good Practice: Dismissal – Schedule 8 should be followed, which deals with the suspension of an employee.
With the most recent case law in terms of suspending an employee as a precautionary measure pending disciplinary action, the courts have not over-emphasised the audi alteram partem principle. In the matter of Allan Long vs South African Breweries Pty (Ltd), CCT 61/18 the Constitutional Court of South Africa handed down judgment on the 19th of February in an application seeking leave to appeal against a judgment of the Labour Court relating to Mr Long’s suspension prior to dismissal.
The following explanatory note is provided by the Constitutional Court: “Mr Long was previously employed by South African Breweries (Pty) Limited (SAB) as its district manager for the Border District. He was responsible for legal compliance in respect of SAB’s operations in the Border District, including the requirements pertaining to a fleet of vehicles. On 10 May 2013, a trailer owned by SAB was involved in a fatal accident. The vehicle, before the accident, was in a state of disrepair and unlicensed. This accident prompted an investigation by SAB into the vehicle fleet. It turned out that many of the vehicles for which Mr Long was responsible were not roadworthy and had invalid licence discs. After further investigation and a disciplinary hearing, Mr Long was found guilty of dereliction of duties, gross negligence and bringing the company name into disrepute. He was dismissed on 14 October 2013. Mr Long had also been suspended from work from the time the investigations began until he was dismissed. Two arbitrations followed in the Commission for Conciliation, Mediation and Arbitration (CCMA). The first related to Mr Long’s suspension prior to dismissal. The arbitrator held that Mr Long’s dismissal constituted an unfair labour practice because Mr Long had not been given a hearing before his suspension and the suspension was unreasonably long. The arbitrator awarded compensation equivalent to two months remuneration. SAB reviewed the arbitration awards before the Labour Court. The Labour Court held that where a suspension is precautionary, and with full salary, as in this case, there is no requirement that an employee be given an opportunity to make representations. The Labour Court set aside the arbitrator’s finding that the suspension was an unfair labour practice. In a unanimous judgment written by Theron J, the Constitutional Court partially upheld the application for leave to appeal. The Constitutional Court refused leave to appeal on the merits of the review, holding that the Labour Court had correctly held that an employer is not required to give an employee an opportunity to make representations before a precautionary suspension”.
This is an interesting development, and the outcome will definitely be accepted by employers with open arms. It is, however, still recommended that employers caution themselves when suspending an employee and if possible, apply the audi alteram partem principle. It is also important to note that even if an employee is suspended pending disciplinary action, this employee is still deemed to be an employee of the company during the full period of suspension and is entitled to his/her full pay and benefits for the full period of suspension.
Article by: Tiaan Visagie
Dispute Resolution Official – Pretoria