Employees can be suspended from work in either of two ways. The two species of employee suspension are precautionary suspension and punitive suspension. Punitive suspension occurs when an employer offers an employee a period of suspension without pay, as an alternative to dismissal, when dismissal would ordinarily be the only logical sanction, but extraordinary mitigating factors suggest that the employee is deserving of an option to retain his or her employment.
Precautionary suspension is quite different. There are times when an employer, quite legitimately, is of the view that an investigation into suspected misconduct would benefit from the suspected offender not being at work. There are numerous reasons why an employer may come to such a conclusion. For example, the employer may have good reason to conclude that the employee in question may interfere with witnesses and evidence. It is also quite possible that the employer may not know for sure whether the employee is entirely trustworthy.
This is when the precautionary suspension option becomes available to employers. It must be borne in mind that an employee who is suspended as a precaution, must be fully paid whilst suspended, for the simple reason that they have, at that point in time, pending the outcome of an investigation, not been found guilty of any misconduct what so ever. In fact, they have not even been charged with misconduct at that time. In Sappi Forests (Pty) Ltd v CCMA & Others [2009] (LC), the Labour Court held that it was normally unlawful and unfair to suspend an employee without pay pending a disciplinary enquiry. The only time this would not be the case is when there is a collective agreement permitting unpaid precautionary suspension, or it is permitted in terms of legislation, as is the case in certain areas of the Public sector.
One occasion when an employer need not pay an employee during a period of precautionary suspension is when the disciplinary hearing must be postponed due to the employee failing to attend the disciplinary, without a valid reason for not doing so, whilst on precautionary suspension.
In the case of SAEWA obo members v Aberdare Cables [2007] (MEIBC) it was held that the employer does not have to pay an employee who is on precautionary suspension from the date he or she requested for postponement. The rationale for the decision was to avoid for situations where the employee may unreasonably delay the disciplinary hearing while earning the salary.
An employer decision to invoke its right to precautionary suspension, typically does so pending the outcome of an investigation into misconduct, and/or pending the outcome if a disciplinary hearing.
There are however certain simple steps to be followed when doing so. It has become well stablished in our law that procedural fairness requires employers to afford employees an opportunity to oppose their proposed precautionary suspension, prior to it being confirmed by the employer.
It has been widely held that the suspension of employees pending disciplinary action is permissible only when reasonable grounds exist for suspecting that the employee is guilty of serious misconduct and that employee’s presence may compromise preliminary enquiry, and after the employee has been given opportunity to make representations.
The importance of complying with a fair procedure was emphasised by the Labour Appeal Court in MEC for Education: North West Provincial Government v Errol Randal Gradwell (2012) (LAC). It held that an opportunity to make written representations to show why a precautionary suspension should not be implemented is sufficient compliance with the requirement of procedural fairness.
In the Labour Appeal court case of Member of the Executive Council for Education North West Province v Gradwell (2012) (LAC) held that “The right to a hearing prior to a precautionary suspension arises therefore not from the constitution PAYA or as an applied term of the contract of employment but is a right located within the provisions of the LRA the correlative of the duty on employers not to subject employees to unfair labour practises. That being the case the right is a statutory right for which statutory remedies have been provided together with statutory mechanisms for resolving disputes in regard to these rights.”
So in conclusion, in the Labour Court, case of POPCRU obo Masemola and others vs Minister of Correctional Services (2010), fairness requires the following before suspending an employee pending an investigation or disciplinary action (a) the employer has a justifiable reason to believe, prima facie at least, that the employee has engaged in serious misconduct, (b) there is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of the pending investigation into the alleged misconduct or some other relevant factor that would place the investigation or the interests of the affects parties in jeopardy and (c) that the employee is given the opportunity to state a case before the employer makes a final decision to suspend the employee.