Suspension As Preventative Or Punitive Measure. - Part 2
29 MARCH 2010
What is difference between preventative and punitive suspension? In short suspension as a preventative measure is used where an employee is facing disciplinary charges and the employer wants to prevent the employee from interfering with the employer’s witnesses or other evidence. It is thus used as precautionary measure. Suspension as a punitive measure can be used where the employee is found guilty at a hearing, of a transgression that warrants dismissal, and instead of being dismissed, the employer suspends the employee for a certain period without pay.
Should either precautionary or punitive suspension be used in an unlawful or unfair manner it may amount to an unfair labour practice in terms of section 186(2) (b) which may be referred to the CCMA or a relevant bargaining council.
This week we will be discussing suspension as a preventative measure and will in turn focus on suspension as punitive measure next week.
In order for suspension prior to a disciplinary hearing or pending an investigation to be fair, there must be reasonable grounds on which to base the decision to suspend. In other words a real concern regarding the employee’s possible interference with witnesses or the employer’s evidence must exist. The charges brought against or the possible charges that may be brought must also be of a serious nature and must warrant dismissal should the employee be found guilty of the charges. This could include for example, theft, fraud or sexual harassment.
In addition, preventative suspension can only be fair if the suspension is with full pay! The reason for this is common sense, you are presumed to be innocent until proven guilty and you cannot be punished if not yet found guilty. It is for this exact same reason that suspension without pay, pending the outcome of hearing falls within the ambit of an unfair labour practice and are categorised as unfair disciplinary action short of dismissal. This was confirmed for example in Tsaperas & Another vs Clayville Cold Storage (Pty) Ltd.
The test for a fair suspension was confirmed by the Labour Court in the case of Mogothle v Premier of the Northwest Province & another (2009) 20 ILJ 605 (LC). The court confirmed that test is whether there is a prima facie case against the employee, whether there is reasonable apprehension that the employee will interfere with investigations or poses some other threat, and whether the employee has had a reasonable opportunity to make representations before being suspended.
Although it is not a pre-requisite for a suspension to be fair in the private sector, it is suggested that a pre-suspension enquiry must be conducted in order to provide the employee with a fair opportunity to provide reasons why he or she should not be suspended. This argument enjoys support in various judgments delivered by our courts. In the case of Mogothle referred to supra the court observed that the suspension of an employee pending an inquiry into alleged misconduct is equivalent to an arrest, and should therefore be used only when absolutely necessary. Also in a recent case decided in the Labour Court, SAPO v Jansen van Vuuren  8 BLLR 798 (LC) it was indicated that the employee must be given an opportunity to state his or her case before being suspended:
"There is, however, a need to send a message to employers that
they should refrain from hastily resorting to suspending employees
when there are no valid reasons to do so. Suspensions have a
detrimental impact on the affected employee and may prejudice
his or her reputation, advancement, job security and fulfilment.
It is therefore necessary that suspensions are based on substantive
reasons and fair procedures are followed prior to suspending an
employee. In other words, unless circumstances dictate otherwise,
the employer should offer an employee an opportunity to be heard
before placing him or her on suspension."
It must be noted that this obligation on the employer to hear the other side before suspending an employee is only applicable in the public sector and that no such an obligation has been confirmed for the private sector as yet. Of course the rules of natural justice might necessitate a suspension investigation especially in the light of the fact that suspension indeed has a detrimental impact on the employee and may prejudice his or her reputation, advancement, job security and fulfilment as indicated by the Labour Court in the SAPO judgement.
Even if a suspension, pending the outcome of a disciplinary enquiry, is with pay it may be deemed to unfair if the suspension is for an unreasonably long period of time. As employee you are entitled to have any investigation or hearing dealt with in a speedy manner without unnecessary delays. Thus, if you are suspended and the employer fails to bring charges within a reasonable time, without for example informing you of the progress of the investigation, when you can expect charges or providing you with reasons and or terms and conditions of the suspension it may be found to be an unfair labour practice.
In Mogothle v Premier of the Northwest Province & another (2009) 20 ILJ 605 the Labour Court sums up the principles and tests underlying preventative suspension as follows:
“each case of preventative suspension must be considered on its own merits. At a minimum though, the application of the contractual principle of fair dealing between employer and employee, imposing as it does a continuing of fairness on employers when they make decisions affecting their employees, requires first that the employer has a justifiable reason to believe, prima facie at least, that the employee has engaged in serious misconduct; secondly, 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 thirdly, that the employee is given the opportunity to state a case before the employer makes any final decision to suspend the employee.”
Although most cases referred to in this article relates to suspension in the public sector, the principles can be applied in the private sector mutatis mutandis. Please contact us for professional advice and assistance if you were suspended. Next week - suspension as a punitive measure.
Mrs. Lezanne Bouwer
(LLB, LLM (labour law))
General Manager: Legal Assistance
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