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WHAT IS A LAWFUL SUSPENSION BY THE EMPLOYER?

We are often approached by Employers and Employees alike, asking advice on the lawfulness of suspensions in the workplace. In determining what a lawful suspension is, it is important to differentiate between suspension prior to the disciplinary hearing (precautionary suspension) and a suspension as a consequence (sanction) thereof.

Precautionary suspension

To suspend an Employee prior to a disciplinary hearing Employers must have a justifiable reason to believe that the Employee has committed an act of serious misconduct. This is often referred to as a precautionary suspension (pending the outcome of the investigation / disciplinary hearing). These suspensions are lawful if there exists an objective reason to deny the Employee access to the workplace based on factors that could impact on the pending investigation or the interests of the respective parties. Employers should, at the very least, give the Employee an opportunity to respond to the reasons for the suspension. It is important for Employer’s to appreciate that at this point the Employee has not been found guilty of any act of misconduct, therefore, it goes without saying that this type of suspension must be with full pay (without loss of benefits).

Suspension as a sanction

When Employees are suspended as a consequence of a disciplinary hearing, the suspension of the Employee can be without pay. However, the Employer must, in these circumstances make sure that the sanction is imposed as an alternative to dismissal and that the written consent of the Employee is obtained.

Unfair suspension as an “Unfair Labour Practice” (ULP)

Section 186 (2) (b) of the Labour Relations Act 66 of 1995 states that an ULP means:

“any unfair act or omission that arises between an employer and an employee involving –

(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;”

The Employee will have recourse at the CCMA / Bargaining Council should the suspension be an unfair one. Employers are advised to exercise caution in deciding whether or not to suspend an employee from duty. If the suspension is for an unreasonably long period, or if it is grossly unfair, or if there are no real prospects of the matter ever reaching the disciplinary hearing stage (not rendered serious), the employee can refer the matter to the CCMA and seek re-instatement in his/her employment.

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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)