Employers are driven to make their businesses a success. However, they cannot conduct the work alone and must rely on employees to conduct themselves in line with the values and principles of the company. When an employer suspects an employee has committed serious misconduct, it is very important to ensure that a thorough investigation and correct procedure is followed before the suspension or disciplinary action against an employee is taken. In certain cases, an employer may elect that an employee stays away from the workplace throughout the investigation. This is generally the occasion when an employee is suspended pending a disciplinary hearing.
Section 186(2)(b) of the Labour Relations Act (LRA), deals with the unfair labour practice and the unfair suspension of an employee or any disciplinary action short of dismissal in respect of the employee.
For a suspension to be fair, an employer must take the following factors into consideration:
- On face value, does the employer believe that the employee committed or was involved in the misconduct?
- The seriousness of the misconduct.
- The effect of the misconduct on the business and other employees.
- Whether or not the employee has an influence on the investigation or possibility that the employee may alter or destroy the evidence against them.
- The effect of the relationship between the employer and the employee?
- The possibility of the employee committing further misconduct if they are not suspended?
If the above factors are present, the suspension would be reasonable by the employer. Although the onus is on the employee to prove that the suspension was an unfair labour practice, employers should keep in mind that the process should be carried out correctly. When an investigation is conducted, it is generally a precautionary suspension to anticipate the disciplinary action against an employee. During the suspension period, pending the disciplinary hearing, the employee will still receive their salary in full.
In the reported case of Laurantia Moremi and 8 Others v Power Trading Cash & Carry  NC732-20 (CCMA) an arbitration award was made in favour of the employee for reasons set out in Section 138(7) of the LRA. The employees were suspended for a period of two months pending their disciplinary hearing. The employees were not paid during their suspension as the investigation showed that the company suffered a loss of R2,1 million at the hands of the employees. The letter of suspension was presented as evidence and which clearly stated that the employees would be paid for the period of their suspension.
The commissioner applied the principle set out in Sappi Forest (Pty) Ltd v CCMA and others  3 BLLR 254 (LC) where the court held that it is unfair to suspend an employee without pay, pending the disciplinary hearing. It was found that the employer committed an unfair labour practice and as a result, the employees received payment for the period of their suspension, regardless of the loss to the company.
Important factors for the employer to take into consideration when suspending an employee:
- The employer must give the employee a clear reason for implementing the suspension.
- The suspension notice should be in writing.
- The employee must be given the opportunity to state their reasons why they should not be suspended.
- The employer should take the reasons provided by the employee into consideration before imposing the suspension.
- The employee must also be informed of what is likely to happen after the period of suspension and the investigation.
The Code of Good Practice: Dismissal in Schedule 8 of the Labour Relations Act contains the guidelines that all employers should take cognisance of in terms of imposing suspensions or further disciplinary action against employees. The employer must therefore ensure that when dealing with the suspension of an employee that they are properly notified, the reason for the suspension is clear, they are given the fair opportunity to rebut the notice, and all is done within a reasonable time after the misconduct has been discovered.
To ensure that a suspension of the employee does not result in unfair labour practice, the employer should have a very good suspicion that the employee was involved with the misconduct and consider the seriousness of the misconduct. These two factors will be the first thing that a commissioner take into consideration when / if the matter is referred to the CCMA.
In conclusion, not taking all the factors into consideration and non-compliance with the procedure of suspension may result in unfair labour practice. Although the employer might have suffered a loss due to the misconduct of the employee, when dealing with precautionary suspension, an employer is obligated to remunerate the employee pending the disciplinary hearing.
Article by: Christie de Villiers
Dispute Resolution Official – Polokwane