In summary: suspension should only be used in serious cases (NOT failing to return from leave on time); there must a reasonable expectation that suspension will avoid further misconduct or interruption to investigations; and the employee has had an opportunity to state his case. Only then should a final decision be made.
The following comments may assist you when considering the suspension of an employee. Contact me for any clarification or case details.
Justice Van Niekerk recently commented in a Labour Court judgement on the suspension of employees. He referred to a previous judgement (by Justice Molahlehi) where the court noted:
“There is, however, a need to send a message to employers that they should refrain from hastily resorting to suspending employees when there are no valid reasons to do so. Suspensions have a detrimental impact on the affected employee and may prejudice his or her reputation, advancement, job security and fulfilment. It is therefore necessary that suspensions are based on substantive reasons and fair procedures are followed prior to suspending an employee. In other words, unless circumstances dictate otherwise, the employer should offer an employee an opportunity to be heard before placing him or her on suspension.”
Comment was also made to the trend in which employers tend to regard suspension as a legitimate measure of first resort to the most groundless suspicion of misconduct, or worse still, to view suspension as a convenient mechanism to marginalise an employee who has fallen from favour.
Justice Van Niekerk commented:
“At a minimum though . . .requires first that the employer has a justifiable reason to believe, prima facie at least, that the employee has engaged in serious misconduct: secondly, that there is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct or some other relevant factor that would place the investigation or the interests of affected parties in jeopardy; and thirdly, that the employee is given the opportunity to state a case before the employer makes any final decision to suspend the employee.”
The ‘opportunity to state a case’ need not be a formal hearing; more a process of dialogue and reflection between the parties. In other words a discussion in the manager’s office would suffice as long as the employee has an opportunity to explain why he or she disagrees with suspension. Of course, management should at all times have a witness present – probably an HR representative.
These guidance notes must be read in the context of legislation and case law. If in doubt consult with Focussed Outcomes.
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