Introduction
Our article of last week was about employees who frustrate the disciplinary process in an attempt to delay proceedings. Such delays also impact the employees’ suspension on full pay pending a disciplinary hearing.
Labour Court Judgment
The Labour Court recently delivered a judgement in the case of Strydom v Arcelormittal South Africa which addressed the issue of unpaid suspension for employees who delay disciplinary hearings. The case began with the employer, Arcelormittal, initiating disciplinary proceedings against an employee, Mr. Strydom, and placing him on paid suspension. However, during the course of the hearing, Mr. Strydom employed various tactics to delay the finalisation of the matter. In response, the employer decided to change his suspension from paid to unpaid.
Mr. Strydom then approached the Labour Court, alleging that his unpaid suspension was unlawful. The employer countered by arguing that the Labour Court did not have jurisdiction over the matter, as it was essentially an unfair labour practice dispute that should have been referred to the bargaining council.
Unreasonable Delays
In its judgment, the Labour Court made several critical remarks regarding the conversion of paid suspensions to unpaid suspensions. It noted that employees who are suspended are typically entitled to their full pay while awaiting disciplinary action. However, the court observed that if a suspension is extended for an unreasonably long period due to the employee’s requests for postponement or other delaying tactics, it would be unfair to maintain the general principle of full pay. The court expressed the view that it is possible to suspend an employee without pay when the disciplinary hearing is being frustrated and delayed by the employee’s actions. It stressed that suspended employees facing disciplinary action should not be allowed to find reasons or employ tactics to delay the proceedings at the employer’s expense, as this would constitute an abuse of process.
Conclusion
Ultimately, the court held that it did not have jurisdiction to entertain Mr. Strydom’s application. It clarified that when a litigant contends that their employer committed an unfair labour practice by suspending them, whether the conduct is deemed unfair or unlawful, the litigant must follow the process provided for in the Labour Relations Act (LRA). The court concluded that a mere allegation of ‘unlawfulness’ does not grant it jurisdiction.
