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What should employers take into account before suspending an employee?

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Angry employers too often fire employees on the spot for having broken workplace rules, or for doing poor work. This is understandable in circumstances where the employee has seriously messed up a business deal, damaged equipment, lost crucial information, committed a dishonest act, refused to obey an instruction, or caused other serious damage. However, there is no place for anger in the implementation of discipline. This is because the law punishes employers, who act hastily, and anger very often results in hasty, and foolhardy action.

 

 

 

Over time many employers have learned this bitter lesson, often after a traumatic and costly experience at the Commission for Conciliation, Mediation, and Arbitration (CCMA), a bargaining council, or the Labour Court. Such employers then often resort to venting their anger on destructive employees by suspending them - instead of firing them. However, emotionally motivated and unreasoned suspensions can also result in problems for employers. This is because section 186(2) of the Labour Relations Act classifies unwarranted suspensions as unfair labour practices. Also, a suspension could constitute a breach of contract, and will only be tolerated by law enforcers if it has been implemented via a fair process, and for a good reason.

 

In the case of Mogothle vs Premier of the Northwest Province & another (2009, 4 BLLR 331) the Deputy Director General of Agriculture, Conservation and Development was suspended from duty after the publication of a media article alleging his involvement in corruption. He accepted the first month of suspension, but not the employer’s decision to extend the suspension indefinitely until the conclusion of the investigation. The employee therefore launched an urgent application to the Labour Court on the grounds that:

  •  His rights under the Promotion of Administrative Justice Act (PAJA) had been breached; 
  • His contract of employment had been breached; 
  • The employer had failed to comply with the disciplinary code of the Public Service; and 
  • He had not been given a hearing prior to his suspension.

 

The employer opposed the application on the grounds that: 

  • the matter was not urgent; 
  • the Labour Court lacked jurisdiction to hear suspension matters, as such matters were to be dealt with at arbitration; and
  • the suspension had been lawful.

 

The Court found that: 

  • The Supreme Court of Appeal’s principle of fair dealing had to be applied; 
  • Employees have the right to refer contractual disputes to the Labour Court, in terms of section 77(3) of the basic Conditions of Employment Act (BCEA); 
  • Suspension of an employee prior to a hearing should only be used when there is reasonable cause to show that the employee will interfere with investigations, or pose some other threat; 
  • The employer must give the employee an opportunity, before suspending him, to make representations against the suspension; 
  • There was no indication that the employee’s presence at the workplace would jeopardise the investigation; 
  • Suspension can have serious personal and social consequences on the employee; and 
  • The matter was urgent, and the suspension was a breach of the employee’s contractual rights.

 

The Court therefore required the employer to uplift the suspension.

 

This finding makes it clear that employers considering suspension need first to ensure that they are able to justify the suspension decision, and to follow proper pre-suspension procedures.

In Edumbe Municipality v Putini and others [2020] 5 BLLR 496 (LAC), the employee was placed on precautionary suspension pending an investigation into alleged irregularities. After ruling inadmissible a document on which the municipality had relied for ordering the suspension, the respondent Arbitrator found the suspension substantively and procedurally unfair, and ordered the municipality to pay the employee compensation of nearly R500 000. The LAC upheld the arbitrator’s decision but found that the employee had also been at fault, and therefore reduced the compensation to R120 000.

 

While employers need to take care in justifying suspensions, employees should not expect substantial compensation where they were at fault.

 

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to: www.labourlawadvice.co.za

To register for our 7 May webinar on Lockdown Labour Law please contact Ronni on [email protected] or 0845217492.

 

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