Suspension a question of fairness

MBOMBELA – Suspension of an employee may be punitive or preventative in nature and the correct procedures must be followed  in different circumstances.

When an employer suspends an employee, it may be regarded as an unfair labour practice in terms of Section 186 (2)(b) of the Labour Relations Act (LRA), 66 of 1995.

ALSO READ: Man behind bars due to illegal guns

To justify suspending an employee, the correct processes must be followed. An employee should always be granted an opportunity to respond to the allegations against him or her and must not be suspended unless there are prima facie grounds for believing that the employee has committed an offence in terms of the company’s policies.

The employee must also be informed of the reasons and the duration of his or her suspension. The period of suspension must not be for an unreasonably long period, as our courts have held that suspensions of employees for periods longer than six months are unfair.

ALSO READ: Rhino poaching numbers decrease

A person suspended due to an ongoing investigation, is normally a form of preventative suspension, which takes place before a disciplinary inquiry is held. It is utilised as a protective measure, for instances where possible interference may occur in serious misconduct investigations against an employee.

On the other hand, punitive suspension as a disciplinary sanction takes place after the employee’s disciplinary hearing. It is employed in instances where dismissal is an appropriate sanction for the transgression, but the employer is of the opinion that mitigating circumstances warrants suspension rather than dismissal. This type of suspension is unpaid.

ALSO READ: Eye in the sky can catch criminals

Before suspending an employee for misconduct an employer must ask the following questions to ensure fairness:

• Is there sufficient reasons to believe that the employee was involved in the misconduct accused of?
• Is the alleged misconduct of a serious nature?
• Does the possibility exist that the employee will interfere with the witnesses?
• Is there a possibility that the employee may tamper with the evidence against him or her?
• Does the possibility exist that the accused employee will retaliate against the complainant, especially if the complainant is in a lower position?
• Is there a possibility that the employee may commit similar acts of misconduct in the future, if he or she is not suspended?

An employer should not suspend an employee if the answer to either question one or two are answered in the negative.

If the employee’s response to question one and two are yes, suspension can be considered and will not be considered as unreasonable or unfair, if at least one other question is confirmed as yes.

As a rule suspension is always on full pay because the common law dictates that an employer who suspends an employee without pay, commits a breach of contract. An employee may agree to suspension without pay. See the matter of Sappi Forests v CCMA and others, (2008) LC.

ALSO READ: The suspension bridge is open and ready

The harmful effect of suspension might prejudice an employee’s reputation and job security. It must therefore be based on substantive reasons and fair procedures before employees are suspended.

If you believe that you have been unfairly suspended, you can submit your unfair labour practice complaint in writing, within 90 days from the date of suspension to the Commission for Conciliation, Mediation and Arbitration (CCMA).

For further information, you can submit your enquiries to the CCMA Nelspruit regional office, at 25 Samora Machel Drive, Sanlam Centre Building, seventh floor, Mbombela, with contact number 013-752-2155.