As the section covers an extensive range of instances where an employee will have been dismissed as defined - and perhaps even unfairly so - many times the dismissals of employees can and have been challenged for the grounds upon which they are based, or the manner in which they were carried out.
The right to challenge a dismissal in these two ways is conferred by section 188 of the LRA - dictating that all dismissals must be both substantively and procedurally fair to attain legitimacy.
With a variety of instances which can constitute dismissal, and two overarching ways to challenge such dismissals, it should be kept in mind that at every stage of the disciplinary inquiry and dismissal of an employee, a new potential arises for that dismissal process to be rendered unfair and invalid.
This means it can even happen well before the employee is dismissed.
Also, an employee may be found guilty of some form of disciplinary misconduct, but subjected to a lesser disciplinary sanction, such as final written warning. If no dismissal takes place, although there can be no dispute about unfair dismissal, that is not to say that the employer's conduct may not be subject to other forms of challenge.
Employers may thus be unaware that even the temporary suspension of an employee pending the outcome of a disciplinary hearing can constitute an unfair labour practice. A variety of cases have dealt with this matter in recent years, and case law has built up a robust precedent base which makes the legal position clear.
Most notable of these cases are Stokwe v Member of the Executive Council: Department of Education, Eastern Cape CCT33/18 ("Stokwe"), Long v South African Breweries (Pty) Ltd and Others (CCT61/18) ("Long") which was handed down shortly thereafter, and more recently, DENOSA obo Binza v Department of Health, Western Cape Province (2024/133838) ("Binza").
The applicants in Stokwe and Long took issue with the prolonged period of suspension they were subjected to while investigation into their alleged misconduct was ongoing. Both contended that the actions of their employers were prejudicial and undermined the validity of their eventual dismissals - but the court felt differently.
In both cases, the court affirmed that these incidents (while they may have felt unreasonable from the perspective of the employees) were not in contravention of any law. No labour legislation prescribes a maximum or minimum period of suspension which the employer may not exceed.
Furthermore, both cases make explicit mention that an applicant will struggle to show they suffered prejudice where they continued to receive full pay for the entire duration of the suspension - as was the case in both of these matters.
Long, in particular was therefore foundational in providing that an employer can implement the suspension of an employee on what is known as a precautionary basis (in other words with full payment of salary and benefits to the employee during the period of suspension) and that in this case, the suspension may be implemented unilaterally and without the employer having to demonstrate that the suspension was reasonably necessary.
As such, the requirement that an employer had to provide the employer with its proposed reasons as to why it considered suspension necessary, and then allowing the employee an opportunity to respond to these proposed reasons, was done away with in terms of the outcome of Long, allowing an employer a far greater discretion to simply unilaterally implement suspension, provided this is on a discretionary basis.
However, the most recent judgement in this regard - Binza - while being no exception to the application of the precautionary suspension entitlement, nevertheless contained a novel facet that parties to employment contracts should keep in mind. The applicant in this matter was also suspended for a prolonged period while the employer investigated the allegations against him.
However, the employer was subject to the rules of its own handbook, which specifically provided for time periods when suspending an employee - which, if exceeded, mandated that the employee had to return to the workplace.
Having exceeded the time period, the employee brought an urgent application to have the court uplift his suspension, alleging that the unreasonable prolongation of his suspension was causing him psychological distress and prejudice so severe that no other avenue for relief would suffice.
The court, similarly to Stokwe and Long, held that the applicant's grievances were unfortunate, but are part and parcel with a precautionary suspension, and that he was not suffering any prejudice since he was still receiving his full salary. In any event, the court found, overturning his suspension would not retroactively remedy the distress already suffered.
It is thus important for employers to bear the above unique scenario in mind. Where employers have imposed their own codes of practice on themselves, they must be cognisant of a need to adhere to them.
While labour legislation itself does not prescribe time periods for suspension, a court will very likely consider an employer's own decision to impose additional regulation as binding, and hold that employer to its own standard.
But even within these bounds, employers can continue to rely on the principle that the suspension of an employee where reasonably required to allow the employer to investigate bona fide allegations against the employee, where this is on a precautionary (paid) basis, remains fair.
This is so even where the length of the suspension may extend beyond what the employer considers reasonable or necessary, and the courts will generally be reluctant to intervene in this internal process.
