Introduction
In a previous article we dealt with unpaid suspension of employees who delay disciplinary hearings. When suspending an employee from work, the employer should carefully consider that the misconduct committed by the employee, justifies suspension. The suspension of an employee should only be used when there is reasonable apprehension that the employee will interfere with the disciplinary investigation. It seems many employers are under the wrong impression that an employee can be suspended for any type of misconduct regardless of the seriousness thereof.
In the case of Mokgotle v Premier of North-West Province and Another the Labour Court noted that suspension of an employee pending an inquiry into an alleged misconduct is equivalent to an arrest, and should therefore be used only when there is a reasonable apprehension that the employee will interfere with the investigations or pose a threat of some kind.
Case Study
The case of Mayaba v CCMA and Another provides valuable insights into the legal framework and challenges surrounding precautionary suspensions in the workplace. Precautionary suspensions are typically instituted by an employer when there is a suspicion that an employee’s continued presence at work might interfere with an investigation, possibly leading to tampering with evidence. These suspensions are often with pay and are intended to protect the integrity of ongoing investigations.
In this specific case, Mr. Mayaba, a senior supply chain manager, was implicated in irregularities following a forensic audit. As a result, he was placed on special leave while his employer considered whether to suspend him. Despite being given the opportunity to respond to the allegations, Mr. Mayaba argued that the accusations were too vague and took the matter to the CCMA and Labour Court, claiming unfair suspension and discrimination.
The Labour Court outlined three possible grounds on which precautionary suspensions can be legally challenged:
- Invalidity: A suspension may be invalid if it is imposed beyond the legal authority of the employer or if it contradicts specific workplace regulations. An example is when the power to suspend is delegated improperly, as seen in the case of Mbatha v Ehlanzeni District Municipality and Others.
- Unlawfulness: A suspension can be unlawful if the employer fails to follow a prescribed process before implementing it. This could involve the violation of rules laid out in a disciplinary code, collective agreement, or other regulatory provisions.
- Unfairness: A suspension might be considered unfair under the Labour Relations Act (LRA) if it fails to meet the criteria set out for fair labour practices. The determination of fairness is usually the responsibility of the CCMA or Bargaining Council, not the Labour Court, unless there are extraordinary circumstances that justify urgent intervention.
The Labour Court in this case found that the respondent (the employer) had acted within its rights by suspending Mr. Mayaba as a precautionary measure. The court noted that the suspension was based on the belief that Mr. Mayaba’s presence at work could potentially interfere with the ongoing investigation, a belief that did not require substantiation by objective facts at that stage. The court also considered the seniority of Mr. Mayaba’s position and the influence he might have over other employees as factors justifying the suspension.
Ultimately, the court dismissed Mr. Mayaba’s application, emphasizing that there was nothing grossly unfair or extraordinary about his suspension that would warrant judicial intervention.
Conclusion
This case reinforces that while the validity, lawfulness, and fairness of a suspension can be challenged, the appropriate remedy is generally governed by statutory regulations. The Labour Court will only step in under exceptional circumstances where there is compelling urgency or gross unfairness.
