Can an employer suspend an employee? This question is often asked when an employee commits a serious form of misconduct. As with most labour related cases, the answer is a definitive “yes”. However, also as with all labour related cases, the suspension must be for a fair reason and follow a fair procedure.
Often, an employer has sufficient reason to suspend an employee, but fails to follow the correct procedure. This could land the employer in hot water at the CCMA. An example of this is in the case of American Products Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2021] 1 BLLR 64 (LC). In this case the employee was employed as a truck driver. After being involved in an accident, the employee was suspended without pay, and denied access to the premises. Shortly after, the employer requested that the employee obtain an eye test, as failure to do so, would result in an ‘instant dismissal’. The employee failed to provide the necessary documents and was subsequently dismissed. The employee had referred a case of unfair labour practise concerning his unpaid suspension to the CCMA.
At the CCMA, the Commissioner referred to two types of suspension. A ‘precautionary’ suspension, and a ‘punitive’ suspension. A precautionary suspension is not designed to impose discipline, but rather to ensure an effective investigation and good administration. Such a suspension should always be with payment. On the other hand, a ‘punitive’ suspension serves as a form of disciplinary action. In the case of American Products Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2021] 1 BLLR 64 (LC), the suspension was clearly as a precaution as it was prior to the intended hearing
In addition, the Commissioner also indicated that the employee had no opportunity to make any representations in opposing the suspension. Therefore, the suspension was considered unfair, and as such the CCMA ruled in favour of the employee and awarded 6 months compensation. This is a hefty penalty considering the employee was only suspended for a relatively short period.
The case was referred to the Labour Court for review. The Labour Court held that the Commissioner had correctly found that it was a ‘precautionary’ suspension, and as such, ought to have been on full pay. In regards to the failure by the Company to provide the employee with an opportunity to make representations prior to the suspension, the court referred to the Constitutional Court (CC) judgment of Long v South African Breweries (Pty) Ltd and Others [2019] 6 BLLR 515 (CC) in which it was held that where the suspension is precautionary and not punitive, there is no requirement to afford the employee an opportunity to make representations. However, since the employer opted to suspend without pay, there is a punitive component to the suspension, and as such, the employee should have been given the opportunity to make representations. Therefore, the Labour Court found that the decision made by the Commissioner was one that a reasonable decision-maker could have reached. The review application was dismissed with costs.
Considering the above, one should be very careful before suspending an employee. Before suspending an employee for precautionary purposes, the employer must ensure that the suspension is on full pay, for only a reasonable period of time and only for a valid reason. Failure to do so could render the suspension as unfair, and potentially expensive for the employer. Therefore, before the employee is suspended, please contact your local labour practitioner for guidance.
