Suspension

When a transgression is committed in the workplace, it may sometimes be necessary to suspend the employee from the workplace. Suspension is a serious matter and therefore should never be administered before proper consideration of all relevant facts.

Labour law does not prohibit employers from suspending employees but does allow employees to challenge the fairness of suspensions. Section 186(2)(b) of the Labour Relations Act (LRA) defines as an unfair labour practice “the unfair suspension of an employee”. Section 191(1) allows an employee to refer an alleged unfair labour practice to the CCMA or to a bargaining council. Where the employer has suspended the employee for an unfair reason or in an unfair manner the employer can be forced to pay the employee compensation for lost wages or to lift the suspension.

Timing of The Suspension

It is imperative that there is a comprehensive understanding of the fact that an employee does not have to be suspended immediately. There is no rule that precludes a person from being suspended after an investigation has been carried out. The investigation does not have to be completed, although a complete insight into the severity of the offence is necessary, and thereafter a decision can be made as to whether the employee needs to be suspended.

Levels of Suspension

There are different levels of suspension, and the level of the suspension would depend on the circumstances, the seriousness of the matter, and the degree of risk to the company.

It takes place at two levels, namely:

• Suspension from a job function (partial suspension). The employee could be relieved of certain duties, but not sent home.
• Suspension from the workplace (full suspension). The employee leaves the workplace under definite conditions until such time as the investigation is concluded and a disciplinary enquiry is convened.

It is important to always examine the possibility of a partial suspension before affecting a full suspension. However, there may be offences such as theft, fraud and assault and not limited hereto, where a partial suspension will not be appropriate.

Decision to Suspend

Suspension can become expensive and should only be applied when really necessary. Suspension must be authorised if it is due to a pending misconduct investigation. The period of suspension should also be as short as possible.

Ask the following questions when deciding whether to suspend an employee:

• Would the employee be in a position to tamper with or hinder the investigation process?
• If the employee continues with his/her duties, would this jeopardise the safety of witnesses and/or evidence?
• If the accused employee is not suspended, what will the impact of the person’s presence be in the company?
• Would suspension prejudice such individual’s rights?
• Would not-suspending the employee prejudice the rights of the company?
• Would the employee’s presence lead to the aggravation of a sensitive situation?
• Would the individual’s presence disrupt the operation of the business or negatively influence other employees?
• Is further damage or loss likely to occur if the employee remains on the premises?
• Is there a likelihood that the individual could repeat the alleged offence during the period prior to the disciplinary enquiry?
• Will the individual’s presence constitute a threat to his/her safety?

In answering the above questions, the decision to suspend must be made on a holistic basis with due regard to the rights of the employee being balanced against any detrimental effect that the employee’s continued presence will have on the workplace. In other words, if it is concluded that the employee’s presence will have a detrimental effect in the workplace and there is no substantive prejudice on the employee’s rights, then the suspension will be justified.

The employee will be afforded the opportunity to provide reasons why he/she should not be suspended. These reasons (if any) will be considered before making the final decision on suspension.

Notification of the suspension must be in writing and the employee should acknowledge receipt thereof in writing. The notice would include details relating to the reasons and conditions of the suspension.

Suspension and Pay

Suspension will be with full pay and benefits. Note that, if the employee wilfully delays the disciplinary enquiry, it may be fair to convert the suspension to that without pay.

Click here to view an video about top tips when suspending employees.