Precautionary suspensions by the employer

[Friday, June 25, 2010 17:08:57]

It is common practice for employers to suspend an employee who is alleged to have committed misconduct, prior to the disciplinary enquiry taking place. Section 186(2)(b) of the Labour Relations Act (LRA) prohibits the unfair suspension of employees.

In the recent case of Mogothle v Premier of the Northwest Province & another (2009) 30 ILJ 605 (LC), the Labour Court found that the contractual principle of fair dealing between employer and employee applies to the employment relationship under the LRA. This requires the following: 

1.            that the employer has a justifiable reason to believe that the employee has engaged in serious misconduct;

2.            that there is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct or some other relevant factor that would place the investigation or the interests of affected parties in jeopardy; and

3.            that the employee is given the opportunity to state a case before the employer makes any final decision to suspend the employee.

Although the Mogothle case concerned a public service employment relationship, it is submitted that the case has set the standard for precautionary suspensions in any employment scenario.

Employers need to be sure, before suspending the employee, that there is an objectively fair reason to suspend the employee. It is submitted that even if there is an allegation of serious misconduct which may eventually lead to dismissal on the part of the employee, the employer should not be too hasty in suspending the employee without considering the consequences for the employer if the employee is not suspended.

In POPCRU obo Masemola & Others v Minister of Correctional Services (2010) 31 ILJ 412 (LC), the Labour Court set aside a preventative suspension where the employee was not given an opportunity to state his case before a decision was taken. The court took into account that the suspension impacts on the employee's reputation, dignity, integrity and job security. The Employer had violated the employee's rights in not affording him an opportunity to be heard prior to the implementation of the suspension.

In the final analysis, the employer is obliged to afford the employee a reasonable opportunity to state his case against a suspension. This need not be a full blown hearing and would depend on the circumstances of the employer, the allegations against the employee and whether the employer’s disciplinary code gives any direction on the matter. It is suggested, having regard to the Mogothle case, that should circumstances require it, an employer would be entitled to provisionally suspend an employee but that the employee should be given an opportunity to advance reasons as to why the suspension should not be made final.

Rudi Kuhn

Labour law attorney, Pretoria

May 2010


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