2022-05-16

Fair suspension before and after a disciplinary hearing

Roxanne Fielies: 16 May 2022

Suspension falls into two categories: one after discipline as a disciplinary measure and one before discipline to remove the employee, and to investigate.

- Punitive Suspension: a disciplinary decision for an employee who has already been found guilty of misconduct after a disciplinary hearing.

Suspended without full pay and benefits

- Precautionary Suspension: suspending an employee so that the investigation into their alleged misconduct or the collection of evidence without the presence of the employee at the workplace.

Suspended with full pay and benefits

Precautionary suspension is an attend to minimise damage control in the case of employees with sensitive information or access to systems and clients which could be at risk if the employee decides to cause damage. Its main purpose is uninterrupted investigation into alleged misconduct.

The employee can be restricted in any manner to prevent access to their normal work functions: removal of laptops, access cards, company cell phones, etc. The employee can be stopped from entering the workplace or contacting anybody related to the company, however, they must be allowed access to prepare for their disciplinary hearing, with permission from their manager.

Admin for both types of suspension:
There must be a written notice of suspension issued to the employee.

There is no longer any need to provide the employee with an opportunity to make representations as to why they should not be suspended

Factors to consider:
- Type of misconduct
- The employee’s disciplinary record
- The internal Disciplinary Code
- The period of suspension

When things go wrong:
Suspension is a category of Unfair Labour Practises dispute, which, if the employee decides to refer a dispute to the CCMA needs to do so within 90 days of becoming aware of the unfair labour practise. The worst-case scenario at the CCMA is 12 months compensation for an unfair suspension.

If there is also a dismissal after the suspension, it is possible for an employee to run two disputes simultaneously.

Labour Court in Mogothle v Premier of the North West Province & another [2009] 4 BLLR 331 (LC):
The Labour Court holds strong view on suspension and the effect thereof: where the LC stated that “the suspension of an employee pending an inquiry into alleged misconduct is equivalent to an arrest, and should therefore be used only when reasonable apprehension that the employee will interfere with investigations or pose a threat of some kind”
Sappi Forests (Pty) Ltd v CCMA & Others (52008) 17 LC 1.11.83, reported in [2009] 3 BLLR 254 (LC)”
It is vital to note that whilst an employee is suspended the suspension. The Labour Court held that the employer is in breach of contract, should the employer unilaterally decide not to remunerate the employee during precautionary suspension.

The Judge ruled that “the position at a common law has always been that an employer who suspends an employee without pay commits a breach of the contract of employment. An employer may suspend an employee without pay if the employee so agrees, or legislation or a collective agreement authorises the suspension”

Please contact your consultant or Brentwood Offices to assist you and guide you through the suspension process: 011-963-0363/admin@brentwood.co.za

Mark - 06:12 @ common, Industrial Relations, Human Resources | Add a comment

 
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