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Suspensions can become very legalistic, drawn-out and costly.
This has been shown recently concerning suspensions of senior government officials. In the private sector these suspension fights are also rife, but just not so much in the public’s domain.
There are no statutory provisions on how long the period of suspension may endure and employers and employees alike will generally have to rely on the sentiments expressed in case law.
Some companies do, however, have provisions in their disciplinary procedures that require, for example, that employees must be charged within three days of being suspended or that a hearing must start within 30 days of the company becoming aware of the offence.
These types of provisions are sometimes not practical and should be removed, as they create opportunities for employers to fall foul of their own their own policies.
For example, an investigation after the suspension and prior to the hearing starting could necessitate a much longer suspension period.
Although the duration of a suspension could be used by employees to motivate a claim for unfair suspension or even a constructive dismissal, it is normally used in conjunction with other suspension-related circumstances and events or non-events.
This is supported by the following extract from a Labour Court judgment:
“The employee is entitled to a speedy and effective resolution of the dispute. Employers must not be allowed to abuse the process.
“The investigation must be concluded within a reasonable time, taking all the relevant factors into consideration, and the employee must be informed without undue delay about the process steps that the employer is initiating.
“This may take the form of allowing the employee to return to work or alternatively furnishing this individual with a charge sheet summoning him/her to a properly constituted disciplinary hearing.
“The disciplinary hearing must be initiated within a reasonable time of the individual being suspended.”
The judge further stated that “the objects underlying the right to a speedy investigation, without unreasonable delay, can be stated to be the following:
l To prevent the unnecessary disruption in the life of the employee.
l To minimise the anxiety and concern of the employee.
l To limit the possibility that the employee will not be allowed a fair hearing.
l To resolve the dispute expeditiously.”
In practice, employees are, for example, suspended pending the outcome of an investigation, with the next letter from the company notifying the employee of the charges, date of the disciplinary hearing, and so on.
Case law examples of employer inactivity for a period of up to nine months have confirmed employees’ claims of unfair suspensions.
An example is where a director resigned after having been on suspension for eight weeks pending an investigation and, with the assistance of a labour attorney, alleged a constructive dismissal.
The manner in which the employer handled the investigation and communicated with the employee during the investigation ensured a verdict of a fair suspension and no constructive dismissal.
The employer sent a properly drafted suspension letter containing the reason for the suspension, the envisaged duration, the envisaged investigation process to be followed, the envisaged decision-making process, and so on.
During the investigation, the employee was continuously kept informed, not on what the investigators were unravelling but on the extension of investigation deadlines, the fact that disciplinary charges would be made, etc.
In this example, even though the employer could not meet promised or envisaged deadline dates, the manner in which it dealt with this, and its ability to provide acceptable evidence, saved the day.
Employers are advised to deal with their suspension cases in a sensible and fair manner, otherwise they could lose a constructive dismissal case.
When considering an employee’s claim of prejudice, remember you are entitled to manage your potential risk by means of the suspension. So, for example, you can suspend in order to protect the workplace or employer’s interest, or to promote orderly and good administration and for the maintenance of integrity and morale.
In certain types of institutions, we read about lengthy suspensions, on full pay, where employees are not charged and little is done to bring the matter to finality.
Apart from it being a rather costly exercise to pay these, normally senior, employees, the employees, in many instances, do not fight their unfair suspensions but adopt other strategies.
This is so especially when they know their employers cannot ensure a fair dismissal, so they merely sit it out and wait for a big settlement to be negotiated.
l Pierre Marais is with the Labour Law Group. Contact him on 011 679 5944.