Precautionary suspension

The act of suspension is widely misunderstood by employers which is problematic in terms of any unfair labour practice.

Suspension can be divided into two categories:  precautionary suspension and punitive suspension.

Punitive suspension

Punitive suspension refers to when the employer imposes a sanction after finding the employee guilty of misconduct at a disciplinary hearing.

Precautionary suspension

Precautionary suspension is imposed on an employee before a disciplinary hearing date to facilitate the completion of the investigation and ensure the proceedings are conducted efficiently and without delay.  Any suspension given prior to a disciplinary hearing needs to be fair and cannot be used as a sanction against the employee, as the allegations of misconduct have not yet been proven in a fair disciplinary hearing process.

Precautionary suspension is generally used:

• if the employee can potentially interfere with witnesses or with the investigation into the alleged misconduct;
• when the employee’s presence on the premises prior to the disciplinary hearing may be disruptive to the workplace;
• when the employee’s presence may be a threat to his/her own safety or the safety of others;
• when the employee can potentially tamper with the evidence; and
• when there is a very serious offence which has caused a break in the trust relationship, such as theft or dishonesty, mainly as a precautionary step to prevent further loss or damage.

For precautionary suspension to be fair, legislation requires that:

• the employer’s relevant disciplinary code/policies are followed;
• the suspension should not be used to punish the employee;
• the employee should be informed of the reason(s) for and duration of the suspension; and most importantly
• the employee should be remunerated in full for the duration of the suspension.

The period of precautionary suspension is always payable to the employee.  The employee cannot be punished or prejudiced for possibly delaying the disciplinary process as such delays would always be at the employer’s cost.

Case study

The employee should be given a reasonable opportunity to give reasons why he/she should not be suspended, however the Constitutional Court confirmed that this is not always necessary – as in the case of Long v SA Breweries (Pty) Ltd (2019) 40ILJ 965 (CC). The court stated that due to the precautionary nature of a so called “precautionary suspension”, an employer is not obliged to provide an employee who receives a written notice of suspension with a chance to make representations before the suspension takes effect, unless a specific provision is made in the employer’s disciplinary code or workplace rules that requires it.

Employers should take note that our courts have also taken a grim view of suspending employees for long periods of time without justifiable reasons. A classic example of this was in the case of Ngwenya v Premier of KwaZulu-Natal [2001] 8 BLLR 924 (LC), where the employee was kept on suspension for approximately nine months.  The court held that employees may not be kept indefinitely on suspension, even with full pay, pending disciplinary action.

To mitigate risk, employers are encouraged to ensure that any suspension which is given, aligns with the procedural and substantive requirements as set out in both legislation and case law. Failure to adhere to these requirements or principles could incur a risk of referral as well as a compensation order by the Commission for Conciliation, Arbitration and Mediation (CCMA) or by the Labour Court.

Contact the LWO for any advice or assistance!

Not an LWO member yet? Take a look at our membership packages.