Been suspended? Know your rights

Employers are allowed by law to suspend employees for a variety of reasons.

Employers are allowed by law to suspend employees for a variety of reasons.

There are two different forms of suspensions, namely: preventive suspensions and punitive suspensions.

A preventive suspension is commonly used by employers to remove an employee from a workplace pending finalisation of a disciplinary hearing.

A punitive suspension on the other hand is a form of a sanction for misconduct.

While on preventive suspension an employee should be paid his or her salary.

The suspension of an employee has to be for a fair reason. It is normally the disciplinary code that provides for the suspension of an employee while waiting for the finalisation of a disciplinary hearing.

The suspension is necessary in situations where an employee commits serious acts of misconduct and his or her presence at the workplace will interfere with investigations. It is not supposed to be used in instances of poor performance or where there is no need for any investigation or the investigation is complete.

In practice, however, these suspensions are sometimes used for ulterior purposes.

According to section 186 (2) of the Labour Relations Act, unfair labour practice is defined to mean "the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee".

It is clear from a reading of the section that the unfair labour practice arises in instances where suspension is imposed as a sanction for misconduct.

However, the Labour Courts have interpreted section 186 to include preventive suspension. Although the courts include preventive suspensions in practice, they are reluctant to interfere with a disciplinary process. Employers, however, often abuse the process by suspending employees where it is not necessary to do so.

Common law requires that an employee be given a hearing before a decision, which adversely affects their rights, is made.

This principle is applicable when an employee is suspended. Most employers do not comply with this principle. The courts' refusal to intervene in these instances leaves the employees exposed to abuse.

The reason advanced by the courts for refusing to intervene is that the suspended employees will have an opportunity to be heard during a disciplinary hearing.

The only option that is available to the employee who is suspended and views the suspension as unfair is to approach the Commission for Conciliation, Mediation and Arbitration (CCMA).

This process is long and cannot be of help to an employee whose dignity is impaired by the suspension.

An employee who is on suspension which is unfair or unlawful suffers damages which are not quantifiable and as such he or she cannot institute a claim for the damages suffered. In other words these employees have no further alternative.

The situation stated above could be remedied if the Labour Relations Act were to be amended to deal specifically with the process leading to the preventative suspension. However, if this cannot be achieved, trade unions have to ensure that a process leading to preventative suspension is spelt out in collective agreements.

Failing to do any of the above means the employees will be suspended where there is no need to do so.

- Sandile July is a director at Werksmans Attorneys.