Pre-hearing suspension
Employers will frequently consider it necessary to suspend an employee, on full pay, pending the outcome of an investigation into suspected misconduct on the part of the employee, and/or to similarly suspend an employee pending the outcome of a disciplinary hearing.
This is ordinarily referred to as ‘precautionary suspension’, and is resorted to when an employer is of the reasonable opinion that its’ business interests are potentially at risk due to the employee continuing to be present during an investigation into suspected misconduct, and/or prior to the concluding of a disciplinary hearing.
At the crux of this initiative to suspend, is a belief that the continued presence of the employee during these periods, has the potential to compromise the employer.
Such precautionary suspension should not be confused with suspension without pay, which is a form of disciplinary sanction.
As held in Mabilo v Mpumalanga Government & others (Labour Court case no. J4158/98), in cases of precautionary suspension “the employee is entitled to a speedy and effective resolution of the dispute. Employers must not be allowed to abuse the process. The investigation must be concluded within a reasonable time taking all the relevant factors into consideration and the employee must be informed without undue delay about the process steps that the employer is initiating. This may take the form of allowing the employee to return to his or her work or alternatively furnish this individual with a charge sheet summoning the individual to a properly constituted disciplinary hearing’.
The Labour Court added that “The disciplinary hearing must be initiated within a reasonable time of the individual being suspended”, further noting that “The objects underlying the right to a speedy investigation, without unreasonable delay, can be stated to be the following (1) To prevent the unnecessary disruption in the life of the employee, (2) To minimize the anxiety and concern of the employee, and (3) To limit the possibility that the employee will not be allowed a fair hearing”.
Although there is no need to convene a formal ‘pre-suspension’ hearing before suspending an employee on precautionary grounds, the weight of authority does suggest that employers should afford employees an opportunity to make representations to the employer, prior to the precautionary suspension being confirmed.
Put simply, the employee should be informed why the employer believes that precautionary suspension is warranted, and the employee should be afforded an opportunity to have his or her say on this proposal, before the suspension is confirmed.
Precautionary suspension could constitute an unfair labour practice in certain circumstances, such as (1) it is unpaid, (2) endures for an unduly long period of time, (3) inadequate reasons are tendered by the employer.
Precautionary suspension should not be confused with suspension without pay, which is a disciplinary sanction typically reserved for occasions when dismissal would ordinarily have been justified, but compelling mitigating factors suggest that a lesser sanction may be warranted.
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