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Law relating to suspension

5 August 2014

In the workplace, an employer has the option of suspending an employee pending an investigation into allegations of misconduct.

A suspension can either take the form of a sanction that is imposed after a disciplinary inquiry, or it can be a precautionary or preventative measure.

The more common form of suspension is a precautionary suspension.

A precautionary suspension is not a penalty, but a preventative measure adopted by the employer when there are reasonable grounds to believe that, at face value, there are allegations of possible misconduct committed by the employee.

A preventative suspension is imposed in order to enable an employer to investigate allegations of misconduct against an employee in an environment that would be free of any possible interference by the employee during the investigation.

Examples of possible interference with the investigation could include intimidation, harassment and/or undue influence on possible witnesses.

In order for a suspension to survive scrutiny by a court there must be a valid reason before it can be effected. A suspension must be for a lawful purpose to enable the employer to investigate the allegations made against the employee without any obstruction by the employee.  

In a recent Labour Court case, the court held that an employee will only have a right to be heard on why they should not be suspended, if the right is expressly provided for in either the employer's policy, statutory regulations or in the contract of employment.

If the employee has an entitlement to be heard prior to the suspension as stated above, they must be given an opportunity to make representations on why they should not be suspended. 

A precautionary suspension must be on full pay without loss of benefits to the employee. A dispute relating to suspension is described as an unfair labour practice. An employee who has been suspended and who believes that the suspension is unfair can refer an unfair labour practice dispute to the CCMA or applicable bargaining council. 

This referral must be made within 30 calendar days of the date of the suspension. An employee can also bring an urgent application in the Labour Court to set aside an unlawful suspension on the basis that his entitlement to be heard prior to his suspension was in violation of the employer's work policy, applicable statute, regulations, rules or contract of employment.

The team

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