Suspension As Preventative Or Punitive Measure - Part 2
9 APRIL 2010
As promised herewith the follow up newsletter to suspension, dated 29 March 2010. In this edition we will be discussing suspension as a punitive measure.
Suspension as a punitive measure refers to the practice of suspending an employee as a disciplinary measure short of dismissal. This suspension is usually without pay and valid for a certain time period. Upon the expiry of the time period the employee returns to work and continues with his duties as normal. Punitive suspension can be lawful where an employee has been found guilty of a transgression that would have warranted dismissal, but due to the existence of mitigating factors, dismissal may be too harsh a sanction to impose. Punitive suspension should only be used after a disciplinary hearing was conducted and the employee agreed to be suspended without pay rather than to be dismissed.
In the Labour Court judgment of SAPI v Comission for Conciliation, Mediation and Arbitration D813/06)  ZALC 129 (31 January 2008) Judge Pillay confirmed this position and also the rational for the requirement of consent by the employee:
 An employer may suspend without pay if the employee so agrees or legislation or a collective agreement authorises the suspension.
 “On the facts suspension without pay is penal in effect and involves substantial social and personal implications, to say nothing of severe financial implications.”
In a nut shell punitive suspension can only be lawful if:
it is imposed after a disciplinary hearing was held,
you were found guilty of a transgression that carriers a sanction of dismissal;
you are dismissed, but are given the option to be suspended for a time period which is not unreasonable, without pay; and
you agree to the suspension without pay for the reasonable time period rather than to be dismissed.
Please contact us for should you need further advice or assistance relating to a punitive suspension.
Mrs. Lezanne Bouwer
(LLB, LLM (labour law).
General Manager: Legal Assistance