The requirement that employers conduct pre-suspension hearings prior to confirming the precautionary suspension of an employee, has been debunked by the Constitutional Court judgement recently handed down on 19 February 2019, in Alan Long v South African Breweries (Pty) Ltd & others [Case number CCT61/180].
Up until now, our case law has obligated employers to afford employees an opportunity to be heard before their employer confirms their precautionary suspension, yet this judgement confirms that it is not necessary to do so. As a result, employers are now required to amend any in-house procedure or policy which includes a pre-suspension hearing, prior to precautionary suspension.
In this particular Constitutional Court case, the employee was making application for leave to appeal against a judgement in the Labour Court which, amongst other things, held that there is no requirement that an “employee be given an opportunity to make representations …. where a suspension is precautionary”.
On this particular issue, the employee, a District Manager in the employer’s Border Region) had been placed on precautionary suspension approximately three months prior to his disciplinary being held.
At arbitration, the arbitrator held that “there was a valid reason to suspend the applicant, but that the applicant had not been given an opportunity to make representations to show why he should not be suspended” and that this amounted to an unfair labour practice.
However, the Labour Court, on the other hand, subsequently held that “where a suspension is precautionary, there is no requirement that an employee be given an opportunity to make representations” continuing that on the contrary “the suspension must be linked to a pending investigation and serve to protect the integrity of that ongoing process. As such, the Labour Court concluded that the failure to conduct a pre-suspension hearing prior to confirming the precautionary suspension, did not amount to an unfair labour practice.
At the Constitutional Court, the employee submitted that “the Labour Court’s finding on pre-suspension hearings goes against existing case law. The Constitutional Court upheld the Labour Court’s position that pre-suspension hearings are not required when an employer is contemplating placing an employee on precautionary suspension. The judgement, on this point, held that “… the Labour Court’s finding that an employer is not required to give an employee an opportunity to make representations prior to a precautionary suspension, cannot be faulted. As the Labour Court correctly stated, the suspension imposed on the (employee) was a precautionary measure, not a disciplinary one … where the suspension is precautionary and not punitive, there is no requirement to afford the employee an opportunity to make representations.”
Emphasising the point, the judgement continued that “The Labour Court’s finding that the suspension was precautionary and did not materially prejudice the (employee), even if there was no opportunity to for pre-suspension representations, is sound”.
Precautionary suspension should not be confused with punitive suspension, which arises when an employer imposes a sanction of dismissal, with an alternative sanction of suspension without pay, with the employee’s agreement.
This judgement is quite a significant departure from a widespread, historical understanding that failure to afford an employee an opportunity to make representations, prior to being placed on precautionary suspension, did indeed amount to an unfair labour practice.
Now that it has been clarified by the Constitutional Court that this is not the case, employers are now in a position to impose precautionary suspension in a less encumbered fashion.
It should be remembered, however, precautionary suspension will none the less amount to an unfair labour practice if it is unpaid, or punitive in nature. It could even amount to an unfair labour practice if it for an unduly lengthy period of time.