If an employee commits misconduct and the employer suspends him before the disciplinary enquiry, a fair procedure must be followed.
If not, the employer can be taken to the CCMA for an unfair labour practice. Not only does it involve costly legal fees, but the employer may also have to pay the employee up to 12 months’ salary in compensation.
The type of suspension that takes place before an investigation and disciplinary enquiry, is known as preventative or precautionary suspension. This type of suspension is used when the employer fears that the employee may interfere with the investigation.
To avoid unfair labour practice claims, follow these five guidelines when an employee needs to be suspended from the workplace:
Guideline #1: Have a good reason to suspend the employee
It is important to note that an employee should only be suspended if the alleged misconduct is gross in nature (very serious), such as theft, fraud, assault, dishonesty, sexual harassment, etc. and that his presence in the workplace may prejudice the employer in that the employee may genuinely interfere with the investigation, that he may manipulate documented evidence, victimise and/or threaten the witnesses, etc.
If the employee is suspended without good grounds, he can take the employer to the CCMA or Labour Court for an unfair labour practice.
What is more, the Labour Court sees preventative suspension as the same as an arrest. The court believes the suspension affects an employee’s reputation and status. So always make sure there is a valid reason to suspend an employee.
Guideline #2: Pay the employee
If an employee is suspended before the disciplinary enquiry, he must be paid in full. If not, it can be argued that the employee is being punished before it is proved that he is guilty. This is illegal.
Guideline #3: Notify the employee of the intention to suspend him
The employer should give the employee a letter informing him that it intends to suspend him. The employee must be afforded an opportunity to present in writing, within reasonable time, any reasons why he believes he should not be suspended. The employer must consider any such reasons.
Guideline #4: Notify the employee of his suspension
The employee must be informed that the reasons he presented why he should not be suspended, if any, were declined (was not adequate to avoid the suspension) and that he is being suspended. He should also be informed that a disciplinary enquiry may be held in the future, pending the results of the investigation.
In addition, the employee must be informed that he would receive a notice to attend a disciplinary enquiry, if it is decided to hold one.
Guideline #5: Notify the employee of his disciplinary enquiry
If, after the investigation, there is enough evidence for a disciplinary enquiry, the employee must be given notice to attend. In the notice, the full charges against him must be explained, the details of the enquiry and his rights at the enquiry (Our next article will focus on the items a ‘notice to attend disciplinary enquiry’ must contain).
Something as simple as suspending an employee could be the reason employers land up at the CCMA for an unfair labour practice and end up paying the employee up to 12 months’ salary in compensation. These guidelines will ensure that the suspension is always fair.
The National Minimum Wage (NMW) in South Africa is currently R25.42 for an ordinary hour of work. On 01 February 2024 the Minister of Employment and Labour announced that the NMW...