Thursday, July 10, 2008

An employee has been accused of serious misconduct in the workplace. Does the employer suspend him immediately? Is the employer obliged to hold a “pre-suspension” hearing? What are the consequences for the employer if a pre-suspension hearing is not held prior to the employee being suspended?
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 a recent 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. On 1 December 2006 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 on 6 December 2006, with pay but without giving him some form of hearing prior to his suspension. 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.
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, or when employees are suspended without a hearing, even though such suspensions are with pay.
Karen Fulton is a director and Eva Mudely is a senior associate at Bowman Gilfillan