Fair vs unfair suspension

Author: Lungile Mkhize

The Labour Relations Act (LRA) establishes a detailed legal framework for managing the relationship between employers and employees in South Africa. A crucial provision within Item 4 of Schedule 8 mandates employers to conduct a fair and comprehensive investigation before taking disciplinary action against an employee. To support this process, employers may suspend employees while awaiting the outcome of a hearing. However, the LRA also highlights the risk of this power being abused. According to Section 186(2), an employee’s suspension may be regarded as unfair if not executed appropriately, which could lead to an unfair labour practice. Here, we examine the legal intricacies of employee suspension, the obligations of employers, the protection of employee rights under the LRA, and the factors that determine whether suspension should be with or without pay.

Understanding employee suspension: Legal considerations

Employee suspension is a significant decision and must be approached carefully to avoid potential legal complications. Below are key legal considerations regarding employee suspension:

1. Suspension must be justified: Suspension should only occur when there are valid concerns about an employee’s conduct, often involving serious allegations that warrant an investigation. Employers must have clear, reasonable grounds for suspending. For example, if an employee is suspected of theft or fraud, suspension could be warranted to maintain workplace integrity during the investigation.
2. Written notification and clarity: The employee must receive a written notice detailing the suspension. This ensures that the reasons for the suspension are clearly communicated and properly documented. A verbal suspension is insufficient from a legal standpoint. The written notice should specify the cause of suspension, its duration, and whether or not the suspension is paid.
3. Minimise suspension duration: Suspensions should be as brief as possible. Employers should aim to avoid causing unnecessary disruption to the employee’s career or livelihood. Extended suspensions without valid reasons may be deemed unreasonable. Employers should seek to resolve the matter swiftly to lessen the negative impact on the employee’s work life and mental well-being.
4. Challenging suspension at the CCMA: If an employee believes the suspension is unjustified, they have the right to challenge it. The Commission for Conciliation, Mediation, and Arbitration (CCMA) serves as the platform where employees can contest unfair suspensions. Employees may argue that the suspension was unfounded or that proper procedures were not followed (for example lack of written notice, absence of clear reasons for suspension, or the suspension being overly long).

Employer obligations in suspension cases

Suspending an employee is a serious matter and must be approached with care. Employers have several responsibilities to ensure the process is fair and transparent, respecting the employee’s rights. Failing to adhere to proper procedures can result in legal challenges, claims of unfair treatment, and negative effects on workplace morale. The following outlines the steps employers must take when suspending an employee:

1. Clear and transparent communication: Employers must give clear, written notice of the suspension to the employee, specifying the reasons, including the exact allegations. Transparent communication reduces the risk of misunderstandings and protects both parties.
2. Fair investigation: Before suspending an employee, employers must conduct an unbiased and thorough investigation. This includes gathering relevant facts and interviewing witnesses. A fair investigation ensures that decisions are based on evidence rather than assumptions.
3. Clarifying pay status: Employers should inform the employee whether they will receive pay during the suspension. If the suspension is unpaid, employers should explain why and under what circumstances this could change.
4. Specify suspension length: The employer must clearly state how long the suspension will last. The duration should be as brief as possible, allowing enough time for a fair investigation without unnecessary delays.
5. Provide opportunity for employee response: Employers should give employees a chance to respond to the allegations before finalising the suspension. This ensures that the employee has the opportunity to present their side, supporting a just and fair process.
6. Maintain confidentiality: Employers must maintain confidentiality throughout the suspension and investigation. Only those who need to know should be privy to sensitive information, safeguarding the integrity of the process and the employee’s privacy.
7. Limit access if necessary: In certain instances, employers may need to restrict the employee’s access to company property, systems, or confidential information during suspension. This may be necessary if there are concerns about ongoing misconduct or tampering with the investigation.
8. Post-suspension follow-up: Once the suspension is over, employers should provide the employee with clear instructions on the next steps, including when and how the disciplinary hearing will take place. This helps the employee understand what to expect and ensures the process moves forward smoothly.

Consequences of failing to meet employer responsibilities

1. Unfair suspension claims: If an employer does not follow the correct procedures or provide sufficient justification, the employee may claim the suspension was unfair. This could result in disputes or accusations of wrongful treatment.
2. Legal repercussions: Improper suspension practices may lead to legal actions, including claims of wrongful termination or discrimination. Following the correct procedures reduces the risk of facing such lawsuits.
3. Deterioration of employee morale: Unfairly handled suspensions can harm workplace morale. Employees who feel mistreated may lose trust in the employer, which could decrease motivation and negatively affect the overall work environment.

Paid vs. unpaid suspension

There are clear rules regarding whether an employee should be paid during a suspension. While employees are generally entitled to full pay during suspension, certain conditions allow for suspension without pay.

Paid suspension: Typically, in South Africa, employees are entitled to full pay while suspended, especially when awaiting disciplinary action. This ensures that the employee’s income is protected until the matter is resolved. However, employees may voluntarily agree to waive their right to pay, in which case the suspension may be unpaid.

Unpaid suspension: In specific cases, employers may suspend an employee without pay, but this must occur under certain conditions:

1. Employee agreement: The employee agrees to the unpaid suspension as part of a mutual arrangement with the employer.
2. Legal or collective agreement provisions: Some legislation or collective agreements may permit unpaid suspension under certain conditions.
3. Delays in the disciplinary process: If the employee causes delays in the disciplinary process (e.g. by requesting multiple postponements), the employer may opt to suspend them without pay until the hearing occurs.

Suspending an employee should always be a carefully considered decision. By adhering to legal procedures, maintaining clear communication, and ensuring fairness, employers can minimise legal risks while protecting both the employee’s rights and the integrity of the workplace.

Contact our payroll team on [email protected] for any pay-related queries.