How to suspend employees?
Serious misconduct and dismissals are part of every employer’s life, whether it is a small employer with just a few employees or a large corporation with many employees. However, serious misconduct and the procedures to deal with it can be full of pitfalls and should not be taken lightly by employers.
One of those pitfalls can be the “non problematic” and often used measure of suspension with pay, pending an investigation into the misconduct and also to prevent the employee from interfering with the investigation. The old way of thinking about suspension was that as long as it is with pay, there is no prejudice to be suffered by the employee. The employee is basically not working on “paid time”. Often these suspension periods would run into weeks, sometimes months and even longer!
In recent cases in the private and public sector, the Labour Court again looked at suspension with pay and found that there are more to it than just paying the employee during the suspension period.
In the first Labour Court case, SA Post Office Ltd v Jansen van Vuuren NO & others, (2008) 17 LC 1.11.36, The employee was suspended and issued with a final warning by the applicant for gross negligence/dishonesty in that he had been the last person present in a server room when an outage occurred which caused the applicant financial loss.
In this case, the Labour Court held that the suspension constituted a separate unfair labour practice, in that it was unwarranted and unfair from both a procedural and substantive point of view. Although factors such as the period of suspension, which was not long, and that the suspension was with pay counted in favour of the employer, the Labour Court found that employers should refrain from hastily suspending employees when there are no valid reasons to do so. Suspensions may prejudice the victim's reputation, advancement, job security and fulfilment. Where possible, the employer should offer an employee an opportunity to be heard before placing him or her on suspension.
The next case where the issue of suspension was discussed is that of Dladla v Council of Mbombela Local Municipality & another (2008) 17 LC 6.4.1 The municipal manager of the Employer had, in terms of a resolution taken by the council, been placed on special leave. He sought a declaration by way of an urgent application from the Labour Court that the resolution was unlawful, null and void, and asked for an order permitting him to return to his duties. After the application was postponed to the next week the employee’s special leave was cancelled and he was placed on suspension, again by way of a resolution of the council.
In terms of the contract of service of the employer, the municipal manager may be suspended on full pay if it is alleged that he has committed a serious misconduct and the Municipality may do so in its sole and absolute discretion where it believes that the presence of the municipal manager may jeopardise any investigation. In terms of suspension clause, the municipal manager shall also be notified in writing of his suspension and he shall be entitled to respond to the allegations within 7 working days. A disciplinary hearing must be held within 90 days of the date of the suspension. The employee therefore had a contractual right to certain suspension conditions.
The Court was of the opinion that, prima facie, it would appear that the special leave clause was used to de facto suspend the applicant pending the outcome of the investigation. By doing so, the employer acted, at least on a prima facie basis, contrary to the provisions of the employee's contract of service.
The Court further found that, in light of the circumstances, the Council had the right to suspend the employee, but the employee also had certain rights in terms of the precautionary suspension clause and that is firstly to be informed in writing of the suspension and secondly to be afforded an opportunity to respond.
The Court mentioned that it is trite in our law that a suspension must be fair. These points were completely ignored by the respondent. In conclusion the Court found that employers must act in terms of their own disciplinary codes in disciplining employees. Similarly, where a contract of employment provides for a procedure in terms of which an employee may be suspended, the employer should act in terms of that provision.
In Naidoo / Rudolph Chemicals (Pty) Ltd (2008) 17 NBCCI 6.4.1, it was held by the commissioner that, although it is trite that an employer has the right to suspend an employee pending a disciplinary hearing, such suspension is not supposed to be punitive in nature in that it is supposed to enable the employer party to make the necessary investigations without any interference from the employee. Such suspension should also not be for an unreasonably long period before a disciplinary enquiry is held.
When considering suspension, employer should heed the trite requirements of our Labour laws, dealing with substantive and procedural fairness. It should be taken into consideration that not only does the employer stand to suffer for the alleged misconduct, but also the employee from the way the employer deals with its pre- disciplinary measures and investigation, as there are negative consequences to a suspension which may affect an employee’s reputation, possibilities of advancement, job security and fulfilment. The time period of the suspension may greatly impact on the question whether it is possible for a suspended employee to return to his job after a suspension lasting for a couple of months. Would the resumption of the workplace relationships be possible and how will the employee fit back into the operations of the employer?
Discipline must be swift to be fair and it is advisable for employers to have a discussion with the employee when considering suspension to hear the employee’s representations on why he should not be suspended.