Employers often suspend employees in frustration without following the correct procedure, when the employee commits an act of misconduct. It is important to follow the correct procedure when considering suspending the employee in anticipation of a disciplinary hearing and to only suspend for justifiable reasons as the contrary can result in an unfair labour practice.
A suspension can be used in 2 instances.
- In anticipation of a hearing in which case it should always be a paid suspension. This is a precautionary measure prior to a disciplinary hearing and is not in itself a sanction or a disciplinary measure.
- A suspension forming part of a sanction issued by a chairperson after a hearing, in which case it would be an unpaid suspension.
In Mogotlhe v Premier of the North-West Province and Another, Judge Van Niekerk indicated:
To determine the fairness of a pre-hearing suspension the following would be considered:
- Does the employer have reason to believe that the employee committed an act of serious misconduct?
- Is there a justifiable reason to deny the employee access to the workplace, would their continued presence at the workplace interfere with any witnesses or evidence or investigations? How will their continued presence affect the interested parties?
- Before the employer makes the final decision to suspend, was the employee given the opportunity to present a reason as to why they should not be suspended pending the disciplinary hearing.
A justifiable scenario would, for example, be where an audit was done which shows irregularities in the business and an accountant is suspected of fraud, the employee also holds a senior position and has access to information and carries influence over subordinates who might act as witnesses. This suspension would be substantively justifiable. To comply with procedure, the employee should be firstly served with a Notice of Anticipated suspension and provided with an opportunity to make representations as to why they should not be suspended pending the hearing. After the representations, the employer then makes the final decision whether to suspend or not. If the employee is suspended they should then be served with a Notice of Suspension.
Important to note should you suspend an employee:
The disciplinary hearing must be initiated within a reasonable time of the employee being suspended as the employee is entitled to speedy and effective resolution of the dispute.
ABOUT THE AUTHOR :
Carla Meiring obtained her BCom Law and LLB degrees from the University of the Free state. After completing her articles at Horn and Van Rensburg Attorneys in Bloemfontein she was admitted as an Attorney. She worked as a general legal advisor before joining SEESA Labour at our Durban Office in 2017.