Suspending employees can be tricky business

Employers often suspend employees pending a disciplinary enquiry but frequently these suspensions can result in disputes.

Employers often suspend employees pending a disciplinary enquiry but frequently these suspensions can result in disputes.

Therefore, it is essential for employers to be aware of the circumstances under which an employee can be suspended.

An employee can only be suspended if an employer has prima facie proof of a misconduct committed by the employee or if an employer has a reasonable suspicion that misconduct has been committed by an employee.

The types of misconduct for which an employee can be suspended are usually contained in the company's disciplinary code and conduct.

In the absence of a disciplinary code, employees can be suspended pending a disciplinary inquiry for serious misconduct such as theft.

The purpose of a suspension is to allow an employer to conduct an investigation into the alleged misconduct without the risk of the employee hampering the investigation by interfering or intimidating witnesses or tampering with documentary or computer evidence.

An employee can also be suspended pending a disciplinary hearing in order to prevent harm to the legitimate business interest of an employer.

This is applicable where customers threaten to cancel their contracts or where the alleged misconduct committed by an employee is known by fellow employees and publicised in the media.

Suspensions of this nature can either be with or without pay. Generally, an employee cannot be suspended without pay because the employee has not been found guilty.

Certain statutory employees (for example, certain public servants) can be suspended without pay pending a disciplinary inquiry because their statutory conditions of service allow for such a suspension.

The Bargaining Council considered the following case in which an employee was suspended without pay pending a disciplinary inquiry.

In SAEWA obo members vs Aberdare Cables a shop steward was suspended with full pay until his disciplinary hearing.

The disciplinary hearing was postponed twice.

The second time it was postponed at the request of the union because of its unavailability on the day that the disciplinary hearing was scheduled to take place.

The employer agreed to this request on condition that it would not pay the employee for the period until the next hearing date.

The union referred an unfair labour practice dispute to the Bargaining Council.

The arbitrator found that it would be unfair to hold an employer liable for payment of salary under these circumstances, because failure to do so might result in employees finding reasons to delay disciplinary proceedings at the employer's expense.

This decision has, however, not been challenged on review and there is no Labour Court authority for this decision.

Employers should therefore carefully consider the facts of each case before deciding to implement a suspension without pay.

This entails an employer looking at the circumstances surrounding the request for a postponement.

In circumstances beyond an employee's control, it is not advisable to implement a suspension without pay.

If an employer can prove that an employee is unreasonably delaying the disciplinary proceedings then only should such a decision be taken.

lWritten by Lavery Modise, a director at Routledge Modise Attorneys, and Felicia van Rooi, a senior associate at Routledge Modise Attorneys.

X