Employers are often challenged on the fairness of the precautionary suspension of an Employee.
The inherent fairness criteria have been impacted by the decision of the Constitutional Court in Long vs South African Breweries (Pty) Ltd and others (2018) ZACC 7.
The purpose of a precautionary suspension of an Employee is mainly to mitigate further risk to an Employer in instances where disciplinary action is contemplated. The circumstances warranting such a suspension differ from case to case. Reasons for a suspension can include that the Employee may jeopardise an investigation; endanger the wellbeing or safety of a person; interfere with potential witnesses; his presence or actions may bring the Employer’s name into disrepute; the potential of committing further acts of misconduct or causing instability in the workplace.
Section 186(2)(2) of the Labour Relations Act defines an “unfair labour practice” as any unfair act or omission that arises between an Employer and Employee involving inter alia the unfair suspension of an Employee.
It follows that the challenge of a suspension in terms of Section 186(2) of the LRA usually attacks the fairness of the suspension. It is argued that the suspension must meet the requirements of both substantive and procedural fairness. In the matter of Mogothle vs Premier of the North West Province and another (2009) 4 BLLR 331 (LC) it was noted by the Labour Court that the suspension of the Employee pending an enquiry into alleged misconduct is equivalent to an arrest, therefore there should be a reasonable apprehension by the Employer that the Employee will interfere with the investigation or pose a threat of some kind.
It is required for an Employer to continue to remunerate an Employee whilst on precautionary suspension. In Sappi Forests (Pty) ltd v CCMA (2009) 3 BLLR 254 (LC) the court found that precautionary suspension without pay would be unfair and further case law even classified such a suspension as a breach of contract (HOSPERSA V MEC for Health GP, (2008)).
In the Constitutional Court case of Long vs South African Breweries and others, the court had to decide whether there is a fairness requirement of a pre-suspension hearing in the instance of a precautionary suspension. In this case, Mr Alan Long, the District Manager of SAB, was responsible to ensure that SAB’s vehicle fleet in his district complied with all legal requirements. SAB’s vehicle fleet however had fallen into disrepair and became unroadworthy and unlicensed due to fraudulent activities. Notwithstanding Mr Long being informed of problems relating to the fleet, SAB found subsequently that problems persisted. Mr Long was placed on precautionary suspension without a pre-suspension hearing and informed that he was investigated for dereliction of duties and gross negligence.
After the suspension and following a disciplinary hearing, Mr Long was dismissed for gross dereliction of duties, gross negligence and bringing the company name in disrepute.
The Constitutional Court specifically found that:
A precautionary suspension is a powerful tool available to the Employer. By imposing it, the Employer acts unilaterally and it serves as a prelude to possible disciplinary action.
To pass the unfair labour practice test set in Section 186(2)(2), the Employer should still be guided by the salient points of fairness. The Employer must assess whether there is a fair reason for the suspension and secondly whether it will prejudice the Employee. Suspension on full pay will ameliorate the prejudice that the Employee may suffer in these instances. Lastly, the suspension should not be for an unreasonable period and the Employer must be able to justify the period of suspension.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)