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UNFAIR SUSPENSION AND YOUR RIGHT TO A FAIR HEARING

If you believe that you have been unfairly suspended by your employer, it is wise to be aware of your legal rights and the recourse that is available to you.

Who to approach and what relief can be granted?

Only the CCMA or relevant bargaining council (if applicable) has jurisdiction to entertain suspension disputes. The Labour Court technically does not have jurisdiction in these types of disputes.

The relief available, upon a finding of unfairness, is set out in section 193(4) of the Labour Relations Act (“LRA”) and permits an arbitrator to determine a dispute ‘on terms that the arbitrator deems reasonable’, which may include an order for reinstatement, re-employment or compensation. The word ‘include’ suggests that the arbitrator may fashion a remedy suited to correct the unfairness.

However, the Labour Court does have the power to order interim urgent relief, in terms of section 158(1)(a) of the LRA and may review and set aside a decision in terms of section 158(1)(h) of the LRA. In practice, employees initially approaching the Labour Court for relief, usually motivates for two orders — firstly, for a lifting of the suspension and, secondly, for reinstatement into their previous position. That relief may be confirmed on the return day (set by the court), unless the employer succeeds in its opposition, then the interim relief is discharged. If the interim relief is confirmed then the relief (as it pertains to reinstatement) is, in effect, the same type of relief available in the CCMA or applicable bargaining council. Whilst the Labour Court has no jurisdiction to determine a suspension dispute, in practice though, through the urgent application process, the Labour Court arguably does have such jurisdiction.

Your right to a fair hearing

It is trite that the principle of fairness and the balancing of competing interests underlie the audi alteram partem rule – which is essentially your right to a fair hearing. It would be unfair if a decision maker could simply take a decision which adversely affects another, without hearing the other party’s side. Firstly, the decision may be entirely unnecessary (the other party may provide a perfectly acceptable explanation for the alleged transgression), or the decision may be irrational and unjustifiable and indicate an abuse of power.

The Labour Court is very alive to the weapon of suspension wielded by some employers for ulterior motives, such as to exclude unpopular employees from the workplace, and therefore will come to an employee’s defence in these circumstances. The Labour Court has held in numerous decisions that an employee must be given an opportunity to make representations prior to the employer making a decision to suspend him or her.

It is arguable that representations made after the decision has been taken, may compromise the audi alteram partem rule. The representations would need to be of a compelling nature to persuade a decision maker to change his or her mind and reverse the original decision. Therefore, the right to be heard before the decision has been taken is the more meaningful option to enable the decision maker to weigh up the representations made by both parties, and then arrive at a fair decision.

It stands to reason that an employee cannot make representations regarding an impending suspension if he or she does not know the reasons for the suspension.

Recently in case of MEC for Education, North West Provincial Government v Gradwell the Labour Appeal Court (“LAC”) emphasized that courts must consider the seriousness of the misconduct alleged. Furthermore, the LAC clarified that the audi alteram partem rule underpinning a right to a pre-suspension hearing “may legitimately be attenuated” in certain exceptional circumstances.

Conclusion

In summary then, the audi alteram partem rule is critical to a fair suspension process. The employer must inform the employee of the nature of the allegations in sufficient detail to enable the employee to make representations with respect to those allegations. The representations should preferably be made before, rather than after, the decision is taken.

Prepared by:

Nicholas Meyer | Candidate Attorney

Contact Us | (+27 (0)21 801 5240 | solutions@adriaansattorneys.com

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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