Angry employers too often fire employees on the spot for having broken workplace rules, or for doing poor work. This is understandable in circumstances where the employee has seriously messed up a business deal, damaged equipment, lost crucial information, committed a dishonest act, refused to obey an instruction or caused other serious damage. However, there is no place for anger in the implementation of discipline. This is because the law punishes employers who act hastily, and anger very often results in hasty and foolhardy action.
Over time many employers have learned this bitter lesson, often after a traumatic and costly experience at the CCMA, bargaining council or Labour Court. Such employers then often resort to venting their anger on destructive employees by suspending them instead of firing them. However, emotionally motivated and unreasoned suspensions can also result in problems for employers. This is because section 186(2) of the Labour Relations Act classifies unwarranted suspensions as unfair labour practices. Also, a suspension could constitute a breach of contract and will only be tolerated by law enforcers if it has been implemented via a fair process and for a good reason.
In the case of Mogothle vs Premier of the Northwest Province & another (2009, 4 BLLR 331) the deputy director general of agriculture, conservation and development was suspended from duty after the publication of a media article alleging his involvement in corruption. He accepted the first month of suspension, but not the employer’s decision to extend the suspension indefinitely until the conclusion of the investigation. The employee therefore launched an urgent application to the Labour Court on the grounds that:
- His rights under the Promotion of Administrative Justice Act had been breached
- His contract of employment had been breached
- The employer had failed to comply with the disciplinary code of the Public Service
- He had not been given a hearing prior to his suspension.
The employer opposed the application on the grounds that:
- the matter was not urgent
- the Labour Court lacked jurisdiction to hear suspension matters as such matters were to be dealt with at arbitration
- the suspension had been lawful.
The Court found that:
- The principle of fair dealing established by the Supreme Court of Appeal had to be applied
- Case law did not prevent parties from pursuing contractual disputes relating to employment issues
- Employees have the right to refer contractual disputes to the Labour Court in terms of section 77(3) of the basic Conditions of Employment Act (BCEA)
- Suspension of an employee prior to a hearing is “equivalent to an arrest” and should only be used when there is reasonable cause to show that the employee will interfere with investigations or pose some other threat.
- An employee should not be suspended for preventive reasons unless there are prima facie grounds for believing that the employee has committed an offence that gives rise to objectively justifiable reasons requiring his exclusion from the workplace
- The employer must give the employee an opportunity, before suspending him, to make representations against the suspensio
- There was no indication that the employee’s presence at the workplace would jeopardise the investigation
- Suspension can have serious personal and social consequences on the employee
- The right to work is linked to the right to dignity
- The matter was urgent and the suspension was a breach of the employee’s contractual rights
The Court therefore required the employer to uplift the suspension.
This finding makes it clear tat employers considering suspension need first to ensure that they are able to justify the suspension decision and to follow proper pre-suspension procedures.
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BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: labourlaw@absamail.co.za. Web address: www.labourlawadvice.co.za. This article first appeared in The Star.
