An employee may be suspended from his work pending a disciplinary hearing or as a form of a sanction. Where an employee is suspended pending a disciplinary enquiry, the employer is in most cases obliged to continue to pay the employee's salary.
However, where an employee is suspended as a form of a disciplinary sanction, the suspension will be without pay. The employer may only suspend the employee without pay if it is provided for by the employer's disciplinary code and procedure.
It normally happens in the course of employment that employees are suspended pending a disciplinary enquiry. Not all alleged transgressions that are the subject of a disciplinary enquiry warrant an employee's suspension.
In SA Post Office Ltd vs Van Vuuren N 0 the Labour Court held that it is only in exceptional cases that an employee should be suspended pending a disciplinary enquiry. Although the court said that the only rationale for suspension is the reasonable apprehension that the employee will interfere with investigation, the following are additional factors that an employer may invoke to suspend an employee:
l The employer has a reasonable concern that his business interest would be harmed by the employee's presence in the workplace.
l The employee's presence would affect working relationships.
l The employee has access to confidential information.
l The offence is of a serious nature.
Although the employer may suspend an employee pending a disciplinary enquiry, the investigation into an employee's alleged transgressions must be concluded within a reasonable period.
Whereas the Labour Relations Act sets out the procedure to be followed before an employee can be dismissed, no procedure is provided for before suspending an employee.
To address this gap, in Mabilo vs Mpumalanga Provincial Government, the Labour Court held that it is necessary that suspensions are based on substantive reasons and fair procedures are followed before suspending an employee. Of importance, the court stated that an employer should offer an employee the opportunity to be heard before suspending him or her.
All that is required is to give the employee an opportunity to make representations to the employer why he should not be suspended.
In the event that the employer suspends an employee without any valid reason and without following a fair procedure, the employee may refer an unfair labour practice dispute to the Commission of Conciliation, Mediation and Arbitration.
This may also be the case where an employer suspends an employee for an unreasonable period.
In the event that the employee is successful with his unfair labour practice dispute, the CCMA will declare the suspension unlawful, order the employer to lift the suspension and may also award compensation to the employee.
Lavery Modise, a partner, and Lebogang Kutumela, an associate at Routledge Modise in association with Eversheds