Suspension of Employees in SA Labour Law
The purpose of suspension is to create the space and time for an employer to investigate whether an employee might have committed a suspected act of misconduct.
The suspension is commonly referred to as a “precautionary suspension” pending the outcome of the investigation and a disciplinary enquiry that may follow. The suspended employee remains on full pay and benefits so does not suffer financially.
What is ‘Unfair Suspension’?
Section 186 (2) (b) of the Labour Relations Act simply defines an “unfair suspension” as an unfair labour practice. The Labour Court usually rules that these cases must be dealt with by the CCMA – not the Labour Court. It has indicated that there must be at least three things present for a suspension to be fair:-
- The employer must have a justifiable reason to believe that the employee has engaged in serious misconduct;
- There must be an objective reason to deny the employee access to the workplace based on protecting the integrity of the pending investigation or the interests of affected parties; and
- The employee must be given an opportunity to state a case before the employer takes a final decision to suspend.
Allegation Details Are Not Required at the Suspension Stage
The Court recently said the employer must give sufficient details about the allegations of misconduct to enable the employee to make meaningful representations before the decision to suspend. It does not have to give sufficient details at the suspension stage to enable the employee to defend the charges. The detail would come later when the investigation has been completed.
TIP: There should be genuine reasons to suspend a suspected employee. The reasons may either be supported by known facts, such as known interference with witnesses or attempts to destroy evidence. Or, if there is no factual evidence – it will be enough to show there are objective reasons based on all the circumstances of the case.
REF: Tsietsi v City of Matlosana Local Municipality (Case no: J404/15, 13 March 2015).
