lvan lsraelstam | Chief Executive | Labour Law Management Consulting | mail me |
Employers regularly suspend employees from duty. This is done in a variety of circumstances for numerous reasons that may include:
- One form of suspension is a temporary lay-off of employees due to operational circumstances.
- 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. This can result in a heavy compensation order against the employer.
- 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 may have a need to avert the danger of the employee repeating the alleged offence.
- Sanction of the employee by the employer. Here, the employee is normally suspended without pay. However, employers need to tread very carefully when such suspensions are contemplated.
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 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. 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, 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.