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: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za
There is a very big and clear difference between a suspension and a dismissal. A dismissal brings the employee’s employment to a permanent end; but a suspension does not have this effect. Instead, a suspension only temporarily pauses the employee’s right to provide services to the employer. Suspensions are carried out in a variety of forms and circumstances including:
- One form of suspension is a temporary lay-off of employees due to operational circumstances. For example, an employer may find itself with little or no work for its employees but may be unable to afford to pay its employees indefinitely. The employer may, in such circumstances, give the employees a section 189 notification of possible retrenchment. Then, during the retrenchment consultations, either party may suggest temporary layoffs as an alternative to retrenchment. This might be implemented where the employees agree to the layoffs and there is some hope of more work and revenue being acquired in the future. In such circumstances the employees would not be paid but would still be employees of the employer.
- Employers must be careful not to hire new employees in place of employees who have been laid off as this would indicate that there had been no good reason for the layoffs. Where there is a large number of workers or where the lay off period is a long one this payment could come to an extremely high amount.
- The employer’s intention behind a suspension may be to make the employee’s working circumstances so uncomfortable that he/she resigns. This motive is both illegitimate and dangerous. Employees sometimes resign on being suspended and charge the employer at CCMA with constructive dismissal. However, the employee will not easily succeed with such a charge because such an employee is obliged to go through the disciplinary process rather than resign. Should the employee claim at arbitration that the suspension was a sham on the employer’s part the employer must be given the opportunity to show that it had good reason to suspend the employee and that there was some basis for the suspicion of misconduct.
- The employer may need to investigate serious allegations made against the employee.
Where the employee is in a position of official or unofficial power the suspension may be necessary in order to ensure that her/his presence at the workplace will not interfere with the investigation. This is a legitimate reason for suspension, but the employee must be on full pay during the suspension period. The employer must be sure not to breach a contractual right of the employee otherwise a civil suit could result. For example, where the employment contract or another contract provides that the employer must provide the employee with training and the suspension materially interferes with such training this could constitute a breach of contract.
- The employer may have a need to avert the danger of the employee repeating the alleged offence. For example, if the employee is suspected of assaulting a colleague, a suspension may be merited to avert the possibility of a repeat assault. Again, the employee must be on full pay during the suspension period and the danger in question must be real.
- Suspension can be used as a punishment of the employee by the employer. Here, the employee is normally suspended without pay. However, such suspensions are often illegitimate. This is because:
- Cutting an employee’s pay may breach the provisions of the Basic Conditions of Employment Act (BCEA)
- The employer may not have a fair reason for punishing the employee and withholding his/her pay. Such suspensions are too often implemented while the employer is in a fit of rage.
The dangers for the employer are that the employee could challenge the fairness of the suspension itself or could take the eviction as a dismissal and take the employer to CCMA or bargaining council on this basis.
Suspension without pay may, in certain circumstances be legitimate. This might be, for example, where the employee already has a final warning for the same type of offence, but the employer does not necessarily wish to dismiss the employee. The employer may then, after following due procedure, give the employee a choice of dismissal or an agreed suspension without pay for a limited period (preferably not more than two weeks).
In the case of Mabitsela vs SAPS (2004, 8 BALR 969) the employee, a policeman, was suspended without pay pending a charge of murder. The police regulations do allow for such suspensions to be without pay. However, Mabitsela claimed at the bargaining council that his suspension was unfair because he had been on unpaid suspension for five months. The arbitrator found that the suspension itself was fair but that it had been unfair to implement the suspension without pay.
This case shows that, even where regulations allow employers to suspend employees without pay this may still be found to be unfair under the circumstances. If a suspected murderer can win such a case it would be even easier for employees who have committed lesser offences to win their cases.
The issue of when suspensions are fair and appropriate is not clear cut and employers are warned not to implement suspensions until they have obtained advice from a reputable labour law expert.
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