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Most employers have had the unfortunate experience of undertaking a thorough investigation into suspected employee misconduct, charged the employee, and then got blown out of the water.
The accused employee, for example, provided previously unknown evidence, contextualised matters differently, or watered down the seriousness of the charges.
Many investigations, especially those concerning fraud, theft, embezzlement and so on, are complex and difficult to unravel.
Not only are they sometimes marred by a lack of evidence to ensure a finding of guilt, but sometimes the suspended and suspected employee could have shed light or provided evidence.
The wise employee will decide not to participate in the investigation so not to incriminate himself or herself. There is a statutory right to silence and, in any event, the onus of proof generally lies with the employer.
The opposite is also prevalent during investigations, namely where the suspended employee wishes to obtain more information.
These demands go beyond the customary suspension letter’s rather bland submission of being “suspended pending the outcome of an investigation into suspected misconduct or non-performance”.
The question is whether a suspended employee must be given an opportunity, during the pre-disciplinary hearing investigation, to respond to the allegations.
Especially with senior employees, being represented by lawyers or during lengthy investigations, a demand for greater disclosure on exactly what the employer is investigating and/or a demand to be given an opportunity to respond or participate in the investigation forms the basis for many letters between the parties.
Case law provides clear guidelines in this regard and, as one Labour Court judge has put it, “one is obliged to consider whether, and if so, to what extent, the employee is entitled, at this stage of the process, to challenge the underlying rationale for this suspension, namely the existence of misconduct or prima facie misconduct, or a reasonable suspicion of misconduct”.
The judge goes further and confirms the existence of previous case law to the effect that “such suspension does not require the employee concerned to be heard, at this stage, on the ultimate question whether the charge is or is not made out”.
Apart from a suspended employee’s claim that he/she should be afforded an opportunity to participate in an investigation, a suspended employee can claim that he/she should be provided with more details on what the suspension is for.
One school of thought latches on to case law that submits that the suspended employee should know exactly what he/she is being suspended for. This argument will also hold water where the misconduct or non-performance act(s) are more clearly identifiable.
Investigating cases involving fraud, embezzlement, theft and bribery may lead to the suspended employee being anxious and vigorously demanding more details as to the motivation for suspension and exactly what is being investigated.
Notwithstanding the existence of legal authority for the provision of rather limited information, a CCMA arbitrator did rule that “the employee was entitled to be notified what the reasons were for the suspension and that it was unreasonable for the employer to expect him to surmise what those reasons might be”, namely that the employer, in this case, should have provided more details than a general submission of “an investigation into your suspected misconduct”.
Another school of thought supports case law that requires employers to provide suspended employees with more information than merely stating that allegations are being investigated.
It requires that a company should notify the employee being suspended that it is investigating allegations that, for example, “concerns the company’s policy relating to the use of cellular telephones”.
As per case law quoted in other articles on suspension, employers are perfectly entitled to provide such additional particulars and a reasonable time to prepare his/her case only once the employer has finalised its investigation and thereafter decided to initiate disciplinary charges against the employee.
In recent articles, I have discussed various aspects pertaining to ensuring a fair suspension, especially as dictated by case law.
It’s common knowledge that the LRA’s section 186(2)(b) provides employees with the right to claim an unfair labour practice pertaining to “the unfair suspension of an employee”.
This statutory provision does, however, have certain practical constraints should employees wish to utilise them.
This predominantly refers to the duration of the LRA’s dispute resolution process, namely to CCMA conciliation and eventually reaching arbitration, some months later. By that time the suspension issue and the whole disciplinary process have been dealt with already.
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.