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Suspending an employee from duty could be a sensitive and complicated exercise, especially where senior or union-member employees are involved.
Suspension could also be the start of a drawn-out disciplinary procedure which could affect a company in many areas: it could be costly; involve a lot of staff (as witnesses); affect morale; create operational uncertainty, etc.
Some employers seek high-powered advice prior to suspending a member of staff, in order to pro- actively evaluate the whole disciplinary exercise and to ensure a legally correct action plan.
In other instances employers are forced to seek advice when legal-tactical games are being played, for example, when the employee books off sick on the scheduled and rescheduled hearing dates.
Other employers follow a “bull-in-a-china-shop” approach and are then required to deal with their mistakes re-actively. For example, a company suspended a female worker who lodged legitimate complaints of sexual harassment against her superior.
By the time an external labour expert was called in, there were legitimate claims by the employee of the company’s having contravened the Employment Equity Act, the Labour Relations Act and its own sexual harassment policy.
Suspension pending finalisation of a pre-hearing investigation and/or disciplinary hearing is customary. The most common reason for suspension accepted by the CCMA/Labour Court is pending the finalisation of a disciplinary hearing. This is closely linked to suspension during an investigation prior to a disciplinary hearing, and the possibility of the employee interfering with the investigation.
Case law also supports suspension where the charges are of a serious nature and where, if found guilty, the employee could possibly be dismissed. The need to suspend pending a pre-disciplinary investigation quite frequently comes under attack by suspended employees and their representatives.
To justify suspension, the employer must believe that there is justification for a disciplinary enquiry.
In a nutshell, a suspension pending an investigation should only be undertaken when:
l the employer has a realistic perception that sufficient evidence exists to support allegations of a serious offence; and
l that the need to hold a disciplinary hearing will exist; and
l if found guilty, it would in all probability lead to the employee’s dismissal.
Suspensions pending the outcome of investigations are frequently dealt with by the CCMA. The following rulings clearly indicate the case law sentiments:
l “the company was following the practice, universally followed by employers, of suspending employees until serious charges against them are properly investigated and, if they are found to have substance, permitting the employee to answer to them”.
This arbitration decision also touches on the process that may be followed by employers, namely to investigate, without being required to share any information with the suspended employee.
l “that the prerogative to suspend an employee with pay, is available to the employer in order to protect the employer’s interest”.
l Related to the above, a Labour Court judge also determined that “the employer may suspend for purposes of promoting orderly administration and for the maintenance of the integrity and morale of the employer”.
Employers and employees are advised to take cognisance of the converse of most of the above examples, namely that should the stated circumstances not prevail, suspensions could be determined to be unfair labour practices or even give rise to constructive dismissals.
Examples could include:
l Failing to suspend an employee, notwithstanding the existence of evidence supporting serious offences, because the employee is working on an important project, and then subsequently, the employer wants to argue a breakdown in the trust relationship to justify a dismissal.
l The repeated suspension of an employee based on frivolous accusations of poor performance which never culminated in disciplinary action, was found to be sufficient grounds for a successful constructive dismissal claim.
l Suspension of an employee due to very serious alleged offences (eg fraud or theft), however, with no evidence existing to ensure a finding of guilt, the suspension is maintained and no disciplinary hearing is scheduled.
l Unreasonably long suspension after having been found guilty at a hearing and awaiting the sanction (eg 13 months).
Suspensions of employees pending an investigation or disciplinary hearing have quite a few legal pitfalls – of which employers should be aware.
One of these is the duration of a suspension, which could affect the reasonableness or fairness of the suspension.
l Pierre Marais is with the Labour Law Group. Contact him on 011 679 5944.