By Dannaline Janse van Rensburg
Rustenburg Branch Manager
The suspension of an employee during an investigation is only recommended when the outcome of the hearing will be negatively affected by having the employee on the company's premises during this time. Notice of suspension should be given to the employee, in writing, before issuing the notice to attend the disciplinary hearing or simultaneous with the issuing of the notice to attend the disciplinary hearing.
An employer can suspend an employee under the following circumstances:
- If the employee is alleged to have committed a serious offence.
- If the employer believes that the presence of the employee at the workplace might jeopardise any investigation into the alleged misconduct, or endanger the well-being or safety of any person or company property.
In a resent Labour Court decision of South Africa Post office v G. S. Jansen and others (2008) 29 ILJ 2793 (LC), the employee was employed as a senior system programmer at the Post Office. On the 1st day of December 2006 the employer experienced an electricity outage in the server room. As the employee was the only person in the room prior to the outage, the employer called the employee to provide an explanation.
The employee was suspended with pay on the 6th day December 2006, because the employer found the employee's explanation as unsatisfactory, without having some form of hearing prior to his suspension. A disciplinary hearing was held on the 16th day of December 2006 and the employee was issued with a final written warning.
The employee referred a dispute of unfair labour practice to the CCMA, disputing the final written warning and suspension. The commissioner granted compensation equivalent to six (6) months' salary, due to finding the suspension as unwarranted.
On review, the Labour Court held that the suspension was unfair, but that the commissioner failed when considering compensation to take into account that the employee was suspended for a short period and with pay. Therefore the employee suffered no actual financial loss as a result of the suspension. The Labour Court reduced the compensation award to an equivalent of one month's salary on the 21st day of January 2007. As per the South Africa Post office case employers should refrain from hastily resorting to suspension, which might be unfair, because suspension has a detrimental impact on the affected employee and may prejudice his or her reputation, advancement, job security and fulfilment.
The Court also held that suspension should be based on substantive reasons and fair procedures should be followed prior to suspending the employee. The Court will take a stern view on employers who hastily resort to suspending employees when there is not a valid reason, or when employees are suspended without a "hearing". The Court stated that an employer should, unless circumstances dictate otherwise, give the employee an opportunity to be heard and to state his or her case - the audi et alteram partem rule - prior to a decision to suspend being made.
Take note however that the finding of the court is only applicable to public institutions. Each public institution has their own set of rules governing disciplinary issues. The Labour Relations Act, 66 of 1995 as well as case law is silent with regards to whether representation must be made before an employee should be suspended and we are of the opinion that no prior "hearing" is necessary.
Despite the fact the above case applies to only public intitutions the following principles serve as a guide to suspending employees in the private sector:
- the suspension must be in writing;
- the employer must have valid and fair reasons for suspending the employee, based on fair labour relations principles;
- the period of suspension should be reasonable and justifiable;
- suspensions must be reviewed on a regular basis;
- the employee must, without delay and throughout the process, be informed of the various steps that the employer is initiating/undertaking and
- if suspended, the employee is entitled to a speedy and effective conclusion of the disciplinary process;
Types of Suspension
- Transfer or re-assignment of duties
The employee is temporarily transferred to another work location, as a precautionary measure. Such a transfer may also entail that the employee is re-assigned to other duties. The transfer or re-assignment of duties will be on the same or similar level.
Transfer or re-assignment of duties should, depending on the seriousness of the alleged offence, be given priority over suspension from duty, in order to curb expenditure where salaries are paid for no services rendered.
- Suspension with full benefits
The employee is not allowed to take up his/her normal duties until the suspension is lifted, but must be available at a location acceptable and accessible to the employer for the purpose of completing the investigation. Any condition attached to a suspension should be regarded as a lawful order. Breach of the instruction could result in further disciplinary action in appropriate circumstances. Suspension does not amount to a breach of the employment contract by the employer because the employee remains on full pay, although prevented by the employer from performing the duties that would normally be required of the employee.
Grounds for Suspension
A decision to transfer/suspend should be taken with care, in the light of the circumstances involved. There are essentially two aspects to consider when transferring/suspending the employee:
- Reasonable suspicion of misconduct. Transfer/suspension may be appropriate once an initial investigation has established at least a reasonable basis for suspicion that alleged serious misconduct may have occurred. Therefore a decision to transfer/suspend should not follow as a mere automatic consequence of suspicion.
- Reasonable belief that the employee may interfere. If there is a reasonable basis for believing that the presence of the employee at the workplace might interfere with the investigation, the witnesses and evidence, the transfer/ suspension of the employee should be a last resort to ensure the continued progress of the disciplinary procedure.
Labournet consultants are specifically trained to assist companies with the suspension process and to limit the risk associated with embarking on this form of action together with the drafting of all documents. Contact your Labournet consultant directly or the Labournet Helpdesk on 0861 522 638 for assistance.
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The information published in this article or newsletter is of general nature and should not be used without obtaining specific advise as to its application in your business or under your specific circumstances. Labournet will accept no liability if the information is used without first obtaining specific advise from one of our consultants