Employers are often faced with the decision on whether to suspend an employee pending a disciplinary hearing or to allow the employee to work until the disciplinary hearing. This is a very important decision that must be made by the employer and may result in a CCMA referral if not carefully considered.
An employer is allowed to suspend an employee pending a disciplinary hearing but such a suspension may be declared unfair and may in terms of Section 186 (2) of the Labour Relations Act (LRA)No. 66 of 1995 constitute an unfair labour practice.
What follows is a guideline to the suspension decision process:
- There must be prima facie (at first sight) grounds for believing that the employee has committed misconduct. In Tungwana / Robben Island Museum (2009) 11 BALR 1178 (CCMA), Mr.Tungwana was suspended pending a disciplinary hearing. The commissioner found that the charges against the employee were unfounded and that the employer had no justified reason to suspend the employee. The employee was awarded 6 months of his salary as compensation.
- The misconduct committed must further be of a serious nature such as dishonesty, assault, sexual harassment etc. It would not be a wise decision to suspend an employee for less serious offences such as being late for work for 2 days.
- An employer must look at the consequences of keeping the employee in the workplace. Could he/she interfere with witnesses?
- Could the employee tamper with vital evidence?
- Is it possible that the employee could commit similar acts of misconduct if not suspended?
Lastly is such a suspension paid or unpaid?
In Sappi Forests (Pty) Ltd v CCMA & others (2008) 3 BLLR 254 (LC), the Labour Court found that the position has always been that an employer who suspends an employee without pay commits a breach of the contract of employment.
The court found that an employer may only suspend an employee without pay if the employee agrees, or legislation or a collective agreement permits such a suspension. This sort of unpaid suspension is only used as part of a sanction.
Therefore if an employee is suspended pending a disciplinary hearing the above should be taken into careful consideration and the employee must be paid in full as if he never left the workplace.
ABOUT THE AUTHOR
Thasigan Moodley joined SEESA in February 2015 and works at the Durban SEESA office. He currently holds the position of SEESA Labour Legal Advisor. He is an LLB graduate of the University of South Africa and Admitted as an Attorney of the High Court. He is currently studying towards his Masters in Labour Law.