Many disputes have arisen recently about the process and fairness of suspensions where an employee is suspended without first consulting with him or her.
By Lizel van Deventer, Director at Gerrie Ebersöhn Attorneys Inc.
Under which circumstances may an employee be suspended?
In the matter of Mogothle v Premier of the North West Province & another  4 BLLR 331 (LC), the Labour Court likened the suspension of an employee pending an inquiry into alleged misconduct to the equivalent to an arrest.
The Courts have also confirmed that the employer may suspend an employee if:
The employer fears that the employee may commit further acts of misconduct
This may be, for example, where an employee is suspended pending an investigation for bringing the company’s name into disrepute and the employer fears that should the said employee continue to have contact with customers, he may further damage the reputation of the business.
The employee’s continued presence is going to hinder the investigation
This is the most common reasoning behind suspensions, simply because the employee may attempt to destroy or tamper with evidence or intimidate witnesses (other employees), who may have to testify against the said employee should disciplinary proceedings be instituted against him.
The relationship between the employer and the employee has broken down to such an extent that suspension is the only solution to avoiding conflict and tension in the workplace
This will be advanced as a reason for suspension in instances where an employee has for instance assaulted a co-worker or a superior. In order to avoid an outbreak of violence or conflict in the workplace and to minimise the parties’ contact with one another, the employer may elect to suspend the employee until such time as the investigation is concluded or disciplinary proceedings are instituted against the employee.
It is advisable that the employer should not only have a sound reason for suspending an employee but should at least have prima facie* evidence that the employee was involved in the alleged misconduct.
Must an employee be paid whilst suspended?
The law is clear that an employee must always receive his full pay whilst on suspension, even if he is found guilty of misconduct. In terms of clause 7.2 of Division A of the MIBCO Main Agreement, an employee who earns commission shall still be entitled to receive his average commission as calculated in terms of clause 5.1 of Division A of the Main Agreement, if he is found not to be guilty of the charges levied against him.
For how long may an employee be suspended?
Employees are usually only suspended until such time as the disciplinary investigation has been concluded by the employer or a disciplinary hearing is convened. The duration of an investigation and/or disciplinary hearing is greatly dependent on the extent and seriousness of the misconduct and, as such, each case is treated on its own merits.
For these reasons the South
African law does not prescribe a maximum time period for which an employee may
be suspended, but instead only requires that suspensions must be fair.
* Prima facie is a Latin expression meaning on its first encounter or at first sight. The literal translation would be “at first face” or “at first appearance”. – Wikipedia.
In the recent Constitutional Court matter of Stokwe v Member of the Executive Council: Department of Education, Eastern Cape CCT 33/18, the Court was tasked with having to decide whether an inordinate delay in finalising disciplinary proceedings rendered the dismissal procedurally unfair. The Court held that given the circumstances a delay of five years was excessive and reiterated that disciplinary processes must be concluded in the shortest time possible.
Must the employer consult an employee before suspending him or her?
This has been the subject of much debate as employees believe that they should be afforded an opportunity to make representations about why they should not be suspended, before the decision is taken whether or not to suspend them pending the investigation/disciplinary hearing.
Earlier this year, the Constitutional Court settled this debate in the matter of Long v South African Breweries (Pty) Ltd and Others (CCT61/18).
In this matter, the employer suspended the employee with full pay pending an investigation of the charges against him. The employee then complained that his suspension was unfair because he had not been given the opportunity to make representations before the employer suspended him.
The Constitutional Court confirmed that an employer is not required to give an employee an opportunity to make representations prior to being placed on a precautionary – not punitive – suspension. It further held that, in general, where such an employee still receives his full pay while on precautionary suspension, the prejudice suffered by him is mitigated.