Process for suspending an employee in South African law

Historically, the process for suspending an employee was fairly complex. The law on suspensions was interpreted by the Labour Court as requiring a pre-suspension hearing in which the employee was required to be given an opportunity to state why he or she should not be suspended, before a decision was taken on whether or not to proceed with a suspension.

However, the Constitutional Court has confirmed that this is not a requirement in the judgment of Long v South African Breweries. In that case, the court found that the preceding judgments requiring a pre-suspension hearing were incorrect, and reasoned as follows:

[24] In respect of the merits, the Labour Court’s finding that an employer is not required to give an employee an opportunity to make representations prior to a precautionary suspension, cannot be faulted. As the Labour Court correctly stated, the suspension imposed on the applicant was a precautionary measure, not a disciplinary one. This is supported by Mogale, Mashego and Gradwell. Consequently, the requirements relating to fair disciplinary action under the LRA cannot find application. Where the suspension is precautionary and not punitive, there is no requirement to afford the employee an opportunity to make representations.

However, despite the Long v South African Breweries judgment, if the employment contract provides that the employer must follow a process for suspending an employee (for example, by stating that a pre-suspension hearing is required), or if the employer’s policy requires this, it remains open to an employee to argue that he or she was unfairly treated if no such hearing took place or if the hearing was inadequate.

Such a claim would be brought by way of an unfair labour practice dispute in the CCMA or if the employer falls within the scope of a bargaining council for its industry, the claim would be brought in that bargaining council.

Another area in which an employee may challenge the fairness of a suspension through an unfair labour practice claim, is in relation to the reason for the suspension. If there was no proper reason, for example, to prevent interference with witnesses or protect the integrity of an investigation, the suspension may be found to be unfair, and the employer may be ordered to lift the suspension or to pay compensation to the employee for the unfairness.