Suspension with Caution: Understanding the Legal Framework

 

 

Introduction

 

In South African labour law, the temporary removal of an employee whether through suspension or dismissal is a significant intervention in the employment relationship. While both halt work, dismissal terminates the contract, whereas suspension is temporary and does not end employment. Despite this, suspension can cause serious personal and professional harm. If imposed without justification, it may constitute an unfair labour practice under section 186(2)(b) of the Labour Relations Act 66 of 1995.

This article examines the legal and practical dimensions of suspension, distinguishing between precautionary and punitive forms, outlining the fairness requirements, and analysing relevant case law. It aims to clarify when suspension is lawful and when it amounts to an unfair labour practice.Top of Form

 

Legal Framework for Suspension

 

Section 186(2)(b) of the LRA defines an “unfair labour practice” to include “the unfair suspension of an employee or any other unfair disciplinary action short of dismissal.” The Act thereby makes it clear that suspension is not immune from scrutiny and must comply with principles of substantive and procedural fairness.

Suspension can be categorised into two broad types:

Precautionary suspension, which is imposed to protect the integrity of an ongoing investigation, and

Punitive suspension, which is a disciplinary sanction imposed after a finding of guilt.

This distinction was judicially affirmed in Koka v Director General: Provincial Administration North West Government, where the court recognised the preventative character of precautionary suspensions versus the retributive nature of punitive ones.

 

Precautionary Suspension: Grounds and Procedure

 

Item 4 of Schedule 8 of the LRA’s Code of Good Practice provides that an employer must first investigate allegations of misconduct before taking disciplinary action. In instances where an employee’s continued presence may compromise the investigation—whether by tampering with evidence, influencing witnesses, or posing a safety risk—precautionary suspension may be justified.

However, as the Labour Court in Mogothle v Premier of the North West Province & Another held, suspension must not be used routinely or punitively before a finding of guilt. In this case, the court compared suspension pending investigation to an arrest, emphasising that it should be a last resort and only invoked where a legitimate risk justifies it.

Fair suspension must satisfy both:

Substantive fairness: There must be a prima facie case of serious misconduct.

Procedural fairness: The employee must be given an opportunity to make representations before the suspension is imposed.

While Long v South African Breweries relaxed the procedural requirement by holding that pre-suspension representations are unnecessary if the suspension is precautionary and on full pay, this was limited to the private sector. Public sector employees remain entitled to additional procedural safeguards through collective agreements and regulations.

Duration and Remuneration During Suspension

 

A pivotal concern in evaluating the fairness of a suspension is its duration and whether the employee continues to receive remuneration. The courts have consistently held that precautionary suspensions must be on full pay unless they are imposed as a sanction post-hearing. In Sappi Forests (Pty) Ltd v CCMA, it was held that suspension without pay constitutes a breach of contract and is inherently unfair if not preceded by due process.

 

What constitutes a “reasonable” suspension period?

 

Though there is no statutory time limit in the private sector, practice suggests that disciplinary enquiries should occur within 30 days of suspension. The public sector, by contrast, is governed by prescriptive timelines in collective agreements. For instance, the Department of Education’s schedule allows suspension for up to three months with a disciplinary hearing expected within one month of suspension.

Any unjustified extension of this period can render the suspension unlawful, as seen in Mogothle, where an indefinite extension absent clear justification breached the employee’s contractual rights and necessitated judicial intervention.

 

Employer Obligations and Procedural Fairness

 

 For a suspension to comply with the law, employers must:

1. Possess a prima facie reason to believe the employee committed serious misconduct.
2. Assess whether the employee’s continued presence risks interference with the investigation.
3. Provide the employee with a clear written notice of suspension.
4. Allow the employee to make representations, unless precautionary suspension on full pay is being implemented in the private sector (Long).
5. Ensure suspension does not exceed a reasonable time frame.

Failure to follow these steps may result in the suspension being declared an unfair labour practice. In Laurantia Moremi and Others v Power Trading Cash & Carry, the Commission for Conciliation, Mediation and Arbitration (CCMA) ruled in favour of employees who were not paid during a two-month suspension, despite a clear undertaking to the contrary in the suspension letters. The employer’s breach led to an award for payment of salaries.

 

 

When is Suspension Unfair?

 

 Suspension becomes an unfair labour practice when it:

1. Is implemented without a legitimate or reasonable basis;
2. Is excessively long or indefinite without just cause;
3. Occurs without affording the employee an opportunity to be heard (outside the Long principle’s scope);
4. Deviates from agreed procedures, collective agreements, or statutory obligations;
5. Is imposed without remuneration where precautionary.

Importantly, the onus is on the employee to prove that the suspension was unfair. However, the employer must ensure that all procedural and substantive steps are taken to resist such a claim.

 

Conclusion

 

Suspension, though an effective interim disciplinary tool, is fraught with legal complexity. Employers must not confuse it with a licence to punish. As demonstrated by case law and legislative provisions, suspension, particularly of the precautionary kind, must be underpinned by a genuine need, executed in compliance with due process, and limited in time and scope. The costs of missteps are high: from reputational damage to monetary awards.

Ultimately, the courts and tribunals in South Africa have made it clear: suspension is not a soft dismissal. It is a temporary, serious curtailment of employment rights that must be handled with the same degree of care, fairness, and legal compliance as any other disciplinary measure.Bottom of Form

 

 

For further assistance, consult an attorney at SchoemanLaw.