suspend an employee

When can an employer suspend an employee?

When an employee commits misconduct, the employer sometimes considers suspending the employee pending a disciplinary hearing. But when can an employer suspend an employee?

There must be a good reason for suspending an employee. For example, if the employee is likely to interfere with the employer’s investigation into the allegations, to commit misconduct again while on suspension, or to disrupt the employer’s operations, the employer may suspend the employee pending the outcome of the disciplinary hearing.

In terms of the suspension process, it was previously understood that employers are required to give employees an opportunity to make submissions on why they should not be suspended before a decision is taken to suspend. However, the Constitutional Court has confirmed that this is not a requirement, and that employers may take a decision to suspend an employee without the necessity for an opportunity to make submissions first.

However, there may be circumstances where the employer has a contractual obligation to provide an opportunity to make submissions before suspension. This can be contained in an employment contract, in a disciplinary code which has contractual force, or in a collective agreement (an agreement with a trade union). Where such an agreement exists, the employer is required to comply with it by providing an opportunity to make submissions.

There is also an obligation on the employer, when suspending an employee, to pay the employee during the suspension.

A breach by an employee of the terms of his suspension (for example, by reporting to work or contacting suppliers or customers) may constitute an act of misconduct, and may itself be contained in an allegation of misconduct that is levelled against the employee in any disciplinary hearing.

If an employee is unfairly suspended, it is possible to pursue an unfair labour practice claim against the employer in the CCMA. If successful, the employee may obtain an order requiring the employer to uplift the suspension, or an order requiring the employer to pay compensation to the employee.

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