How not to keep an employee in state of suspense

Suspending an employee pending a disciplinary investigation and/or disciplinary hearing is an acceptable and entrenched industrial relations practice, and so, too, is the fact that such suspension is normally on full pay.

The general rule of fairness is that suspensions are not without pay as employers could fall foul of their own disciplinary procedures or codes, or it could be an unfair labour practice claim under section 186 of the Labour Relations Act, relating to “unfair suspension”.

In this regard, suspension without pay could also be viewed to be “unfair disciplinary action short of dismissal”.

However, back in the real world, employers are frequently frustrated by postponements during disciplinary hearings which cause them to stretch over weeks and months.

This has the effect that operational uncertainty exists. Other employees need to do the suspended employee’s work, no replacement can be finalised, finality is not reached on the disciplinary matter and it affects morale, especially where a manager is involved.

From the accused employee’s point of view, the dragging out of a hearing means being paid longer, especially where the offence will inevitably lead to a dismissal. The employer is prejudiced financially, especially where the employee is on a substantial monthly package.

In some instances employers’ own historical practices and contractual obligations could cause a costly waste of time, for example:

l A lengthy investigation prior to starting with the hearing. The complexity of the case may justify such a time period, but in some cases it is attributed to employer apathy as they do very little in order to bring a case to finality. We often read about these months-long suspensions with no finality in sight.

l Some disciplinary procedures and employment contracts dictate onerous procedural obligations which could frustrate proceedings. These include pre-dismissal arbitration, where it takes a few weeks to arrange, access to information and entitlement to external representation.

These, with the unavailability of the other parties, could lead to difficulty on agreeing to dates, especially if the hearing is going to last a few days.

With senior employees who can afford legal advice, the raising of procedural technicalities forces the hearing’s chairperson to deal with them.

This can be time-consuming, as borne out in a recent case where the first three days of a 15-day hearing were taken up with the arguing about various technicalities and the chairperson’s rulings.

Throw into the equation a (frivolous) CCMA referral for unfair suspension and a legally flawed urgent application to the Labour Court to suspend the hearing from proceeding, and a hearing becomes messy and the parties’ patience is seriously tested.

Employers can proactively manage unnecessary delays in finalising a hearing by, for example, notifying the accused employee to ensure that witnesses and representatives are available and scheduling fixed hearing dates in advance.

Common reasons for a postponement could include a request for more details in order for the accused employee to prepare properly; a request for access to the accused’s computer; requests for an adjournment after a witness’s evidence-in-chief in order to prepare for cross-examination; and insufficient time to consult a (legal) representative or due to the unavailability of the representative.

Employers are advised to plan the disciplinary hearing’s starting date by allowing sufficient time for reasonable preparation and, as such, not to rely unfairly on their disciplinary procedure’s provision that, for example, 48 hours are sufficient.

Although suspensions are normally on a paid basis, certain circumstances could exist where employers fairly suspend, albeit for a part of the suspension period, on an unpaid basis.

Such circumstances normally emanate from unreasonable employee-initiated actions or requests.

These include requesting unreasonably long time to prepare, being booked off sick (in certain circumstances) and the unavailability of a representative.

When not to pay is a rather tricky decision and guidance is provided by case law. Employers should seek proper labour law advice before they suspend on an unpaid basis.

Employers are cautioned that their incorrect handling of any one of these aspects, because they are hell-bent simply on concluding the hearing, may lead to an arbitrator’s ruling of a substantively fair dismissal.

But it could also mean that such a dismissal was procedurally unfair and led to the dismissed employee being awarded a few months’ compensation.

l Pierre Marais is managing director of the Labour Law Group. Contact him at 011 679 5944. Back copies of articles can be obtained from Wanda at 011 679 5944.