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Suspension can be employer’s prerogative

Question:

I have a suspicion that one of my branch managers is stealing stock and cooking the books. The numbers just don’t add up.

I want to suspend him to allow a full investigation to be done, but don’t want to give him a heads up so that he can hide evidence.

Can I suspend him immediately without giving him a chance to provide reasons so that I can ensure that he leaves the premises? Please advise.

Answer:

It is a general principle of our labour laws that dealings between an employer and employee must be fair and reasonable in all aspects. This includes a decision by an employer on whether or not to impose a suspension.

There are two types of suspensions, and it is important to differentiate between them.

The first type is commonly referred to as a “precautionary suspension”, where an employee is suspended pending the outcome or conclusion of a disciplinary hearing or investigation. The second type is a sanction imposed by an employer following a disciplinary hearing. In your case, the suspension being considered is the former, namely a precautionary suspension.

Until recently, an employer had to satisfy three requirements for a valid precautionary suspension, namely:

  • the employer must have a justifiable reason to believe that the employee has been engaged in serious misconduct;
  • there must be a justifiable reason for denying the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct; and
  • the employee must be given an opportunity to state a case before the employer makes a final decision to suspend the employee. An employee’s entitlement It has long been held that the requirement that an employee be entitled to make representations flows from the principle of natural justice and the importance that both sides should be heard.

This would require the employee to be allowed the opportunity to state reasons why he or she should not be placed on suspension pending the outcome of an investigation or disciplinary hearing.

Case law has in the past also supported this view. It was an established principle that not affording an employee an opportunity to make representations before being suspended rendered the suspension unfair and gave grounds for it being set aside.

This principle was the subject of a recent Constitutional Court decision in Long vs South African Breweries where the Constitutional Court confirmed a Labour Court decision that, where a suspension is precautionary, there is no requirement that an employee be given an opportunity to make representations. However, the Court also added that it was still necessary that the suspension be linked to a pending investigation and the suspension was proven to be necessary to protect the integrity of the investigation and the employee is fully compensated whilst on suspension.

In your situation, it does sound like there are potentially grounds for a precautionary suspension of the manager without the opportunity to make representations and subject to the pending investigation and on full remuneration. However, it would be prudent to engage the help of a labour specialist to ensure that you undertake the suspension on its meritsand with the necessary advice.

– Lucian Companie, director, Phatshoane Henney Attorneys

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