Consequences For Employers Who Hastily Suspend Employees

Jan 16, 2023

Suspension has been described as the employment equivalent of arrest, and is normally used as a “holding procedure” pending disciplinary action. Generally, employees should only be suspended where there is a reasonable apprehension that the employee will interfere with the employer’s internal investigation or repeat the misconduct. Employers are usually able to justify the suspension of the offending employees in cases of sexual harassment, theft, fraud and assault.

However, suspensions can be open to abuse, and employers should be careful about arbitrarily suspending employees, or suspending employees for inordinate periods of time.

A suspension is not intended to be punitive in itself. The Labour Court accepts such action, provided the employer bona fide believes it is necessary for good administration and the employer continues to pay the employee.

In terms of section 186(2)(b) of the Labour Relations Act, 1995, the unfair suspension of an employee is regarded as an unfair labour practice that may be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA).

In an unreported Labour Court decision of South African Post Office v G S Jansen and others (Case No JR832/07), the employee worked for the Post Office as a senior systems programmer. The employer experienced a server room electricity outage. The employer called on the employee to explain what happened, as the employee was the only person in the room prior to the outage.

The employer found the employee’s explanation to be unsatisfactory and accordingly suspended him with pay.  The employee was subsequently charged, a disciplinary enquiry was held within 10 days of the suspension and the employee was issued with a final written warning.

The employee referred an unfair labour practice dispute to the CCMA, challenging his unfair suspension and the written warning.

The commissioner found the suspension to be unwarranted and, without applying his mind to what was equitable compensation for the employee in the circumstances, awarded compensation equivalent to six months’ salary.

On review, the Labour Court held that while the commissioner correctly found that the suspension was unfair, he had, when considering the compensation, failed to consider that the period of suspension was not long and the suspension was with pay. The employee had suffered no actual financial loss as a result of the suspension.

Even so, the judge was of the view that employers should be strongly cautioned on the issue of unfair suspension, as suspensions might have a detrimental impact on the affected employee’s reputation, advancement, job security and fulfillment. The court held that suspensions should be based on substantive reasons, and that fair procedures should be followed prior to suspension. It is no longer a procedural requirement to give an employee some form of hearing prior to suspension.

The Labour Court reduced the compensation awarded to an amount equivalent to one month’s salary.

In short, the courts will come down hard on employers who hastily resort to suspending employees when there is no valid reasons to do so, even though such suspensions are with pay.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@labourman.co.za or 021 556 1075 to speak to one of our consultants.

Author:

Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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