When it comes to suspension from work, employees need to know their rights, so that they can determine whether or not a suspension is unjust, and thus constitute an unfair labour practice.
Business owners are not only tasked with making their companies a success, but also managing employees and ensuring that everyone’s conduct is in line with the brand values and principles. And when it comes to “disciplining” employees, so to speak, certain procedures must be followed to ensure it’s fair and legal.
At some point, employers will encounter a situation in which an employee is suspected of serious misconduct, and the employer will have to investigate the issue before taking disciplinary action. Depending on the circumstances, the employer may be concerned that the employee’s presence at work could interfere with business or the investigation, and may decide to suspend the employee from the workplace with full pay.
What should be considered before suspending an employee?
The decision to suspend an employee in South Africa shouldn’t be taken lightly, and the South African Labour Guide suggests asking a few pivotal questions before proceeding.
1. Do the facts on face value give you reason enough to believe the employee was involved in some kind of wrongdoing?
2. How serious is the alleged misconduct- how has it affected the business and other employees?
3. Could the employee in question possibly interfere with proceedings (tampering with evidence or influence witnesses)?
4. Could the employee facing possible suspension retaliate against the person who laid a complaint (this might be the case if the complainant is a subordinate)
5. Is there any chance of the employee committing further misconduct if they are not suspended?
If the answers to questions 1, 2 and any one other question is “yes”, then it is reasonable to suspend an employee. However, business owners should keep in mind that the suspension process must b carried out properly, or it could result in an unfair labour practice on their part.
Precautionary vs Punitive Suspensions
A precautionary suspension is usually imposed when an employer wants to conduct an internal investigation of an issue and anticipates disciplinary action against an employee. Essentially, they want to ensure that their business interest isn’t damaged and that the employee does not interfere with the investigation.
This type of suspension means the employee still receives a salary and benefits while suspended.
A punitive suspension, on the other hand, is a form of direct punishment for an employee who has been found guilty of misconduct. Basically, it’s only less severe than a complete dismissal from the company. In this case, the suspended employee does not receive a salary or benefits while away from work.
With precautionary suspensions, an employer is not legally obligated to hear an employee’s opinion on why they shouldn’t be suspended.
Recently, the Constitutional Court confirmed a Labour Court Ruling that where suspension is precautionary and with full pay and benefits, the employer doesn’t have to give the employee an opportunity to give reasons why they shouldn’t be suspended.
In the case, a South African Breweries employee received a precautionary suspension. However, SAB did not allow the employee to make representations before the suspension from work.
Basic procedure for fair suspension from work
• An employer must give an employee clear and concise reasons for the impending suspension.
• Additionally, an employer must send an employee a letter informing them of their intention to suspend them. This should also state the proposed length of the suspension (it’s usually around 30 days).
• An employee must be given the opportunity, within reasonable time, to state their case and reasons why they shouldn’t be suspended. An employer should to take the reasons into consideration. With precautionary suspensions, an employer isn’t legally obligated to do this, but it is advised.
• The employee must also be informed of what is likely to happen after the suspension period and the investigation.
How long can an employee be suspended for?
Currently, South African labour laws do not prescribe a minimum or maximum period for suspension from work; it must simply be fair and reasonable. Often, companies will have guidelines about suspension in their disciplinary action policies. The disciplinary procedures must be completed in the shortest time possible. As mentioned above, a good rule of thumb is around 30 days.
Employees’ right to challenge suspension
While employers certainly have the option to legally suspend an employee, a worker is also legally allowed to challenge a suspension from work if it seems “unfair” or “unreasonable”.
A suspension is likely to be an unfair labour practice if:
• the company’s code of conduct or the employee’s contract states that it is possible for the employee to make representations priors to being suspended, but is denied the opportunity;
• the suspension is not directly linked to protecting the on-going investigation into the matter;
• it’s a precautionary suspension, but the employee doesn’t receive compensation while out of the office; or
• the suspension period is unreasonably long.
Do note: public sector employees could also argue that administrative law allows them to always state their side of the story prior to suspension, and, if denied, could deem it unfair.
What action can an employee take?
It is well within the employee’s right to refer the case to The Commission for Conciliation, Mediation and Arbitration (CCMA). To find out how to approach the CCMA, have a look at LAW FOR ALL’s free legal infographic.
If an employee’s case is successful, the CCMA could rule that the company must lift the suspension and award compensation.
Check and double check again!
Considering the Constitutional Court’s recent ruling regarding precautionary suspensions, it’s vital for companies to relook their in-house disciplinary procedures and policies and make sure that everyone is on the same page. What’s more, a potential suspension must be taken very seriously, as infringing on employee rights can have serious legal consequences.