by Michael Bagraim
Suspension, or the call to suspend certain national figures, has been in the news lately.
When an employee faces allegations, sometimes of a serious nature, employers often turn to two possible processes.
Firstly, they can have a disciplinary process as soon as possible and suspend the individual on a precautionary basis, pending the outcome of that disciplinary hearing. As we have seen in the press this last week, ANC Secretary-General Ace Magashule is facing criminal action, and the governing party has the option of asking him to “step aside”, as is their policy, or, if he refuses to do this, it has the option to invoke a precautionary suspension.
Alternatively, the ANC secretary-general could adhere to the party’s policy and voluntarily step aside. All these options are available but of course the employer might decide to leave the employee in his position until the outcome of the criminal case or an internal disciplinary hearing.
There is in fact a lot of law governing the situation and we should try to unpack this law as this issue of suspension affects many employers and employees and is often tackled by trade unions. The difference between punitive suspension and precautionary suspension is vast.
Punitive suspension is where the employer has had some sort of disciplinary inquiry and believes that there should be punishment and a sanction imposed on the employee.
This is after the employee has been found guilty of misconduct or a breach of a term or condition of his or her employment.
There should be some sort of hearing before the suspension takes place so it can be argued validly that the employer has gone through a proper process before invoking the punitive suspension.
This punitive suspension should be given for a finite period of time and should be without any pay. Once the employee has undergone the punitive suspension the debt to the employer for the wrongdoing is expunged.
Simply put a punitive suspension is punishment meted out by the employer to the employee.
Vastly different to this is precautionary suspension.
Many employers invoke precautionary suspension in order to allow them both time and space to properly investigate the wrongdoing and to protect themselves against any further wrongdoing. The employee is approached and advised of the investigation and advised of the allegations.
Obviously for the precautionary suspension to be permissible it needs to be shown that the suspension was fair and whether there was a fair reason for the suspension. The suspension will be on full pay and thus there would be no prejudice to the employee.
Obviously, this suspension cannot be for an inordinately long period of time and also should not be seen to be a punishment. Up until the constitutional case of Allan Long versus South African Breweries it was accepted practice that there would be a pre-suspension hearing allowing the employee to challenge the necessity for suspension.
The Constitutional Court (as outlined by Justice Theron) underlines the fact that the employer is not required to give an employee an opportunity to make representations prior to a precautionary suspension. Furthermore, the suspension imposed on the employee must be a precautionary measure and not a disciplinary one. In essence, there must be a clear statement that the suspension is not punitive and a message must be given out that it is merely precautionary. The employee will be paid full salary during the suspension.
The courts will look at the fairness of the suspension and whether there’s a fair reason. There must be no prejudice to the employee. If the suspension is taking place merely to investigate, this cannot be faulted. All of this is set law as laid down by the Constitutional Court under Case number CCT61-18.
This being said, many employers have their own disciplinary codes and their own structure on suspension.
It is absolutely vital for each and every employer to very carefully look at the code and to ensure that when they suspend any employee it is done in line with the code – as long as this code is not at variance with the Constitutional Court.
If the employer has the necessity for a pre-suspension hearing, then that must take place timeously before the employee is suspended on full pay. It is also important to ensure that when an employee is suspended that this suspension is done by a person with authority within the organisation.
Often an employee does experience negativity and trauma, and this should be downplayed as much as possible by the employer.
* Michael Bagraim is the DA's deputy spokesperson for Employment and Labour, and a labour lawyer.
** The views expressed here are not necessarily those of Independent Media.
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