Every so often it happens that an employee acts in a manner that warrants suspension. Depending on the nature of business of the employer, these acts may vary from theft by the employee, unauthorised absenteeism, abuse of sick leave, negligence, making prohibited statements in a public forum, to any other form of misconduct by the employee. The question posed by many an employer is whether suspension is the answer in dealing with the situation?
The first thing every employer should keep in mind when contemplating suspension is that there are two forms of suspension, namely preventative and punitive:
Preventative suspension is used as a precautionary measure, for example in instances where an investigation pertaining to serious allegations is pending against an employee and the employer would like the investigating officer to remain objective and not be influenced by the employee. This form of suspension takes place before the disciplinary hearing is held. Very importantly, employees suspended as a precautionary measure in this manner, should always be suspended with full pay. Should the employer fail to do this, the suspension in itself will potentially be regarded as an unfair labour practice.
Furthermore, in order to ensure the fairness of the suspension of an employee, the employer should be sure to grant the accused employee an opportunity to respond to the allegations against him and state the reasons why he should not be suspended.
To ensure that the suspension of an employee is not regarded as an unfair labour practice in terms of the Labour Relations Act, the following questions must be asked:
Question 1: Do you, as the employer, believe that there are sufficient reasons to believe that the employee was involved in the misconduct?
Question 2: Is the alleged misconduct of a serious nature?
Question 3: Does the possibility exist that the employee will interfere with the witnesses?
Question 4: Does the possibility exist that the employee will tamper with evidence?
Question 5: In instances where there is a complainant, does the possibility exist that the accused employee will retaliate against the complainant? This is an especially important consideration if the complainant is in a lower position than the accused employee.
Question 6: Does the possibility exist that the employee will commit further or similar acts of misconduct if he is not suspended?
Should the answer to either the first or the second questions be “No”, then the suspension of your employee may not be fair and reasonable and may be regarded as an unfair labour practice. However, should the answer to the first two questions, as well as at least one other question be “Yes”, the suspension may be reasonable and fair, provided that the suspension does not endure for an unreasonable amount of time.
Our courts have held that suspensions of employees for periods longer than 6 months can be held generally to be unfair. Thus, in order to ensure that the suspension of your employees are fair and reasonable, make sure that the investigation into the alleged misconduct by the employee is dealt with timeously in addition to the provisions provided for above.
Punitive suspension, on the other hand, takes place after the employee’s disciplinary hearing and can be used as a sanction, especially where the employee has been found guilty of an offence during the disciplinary hearing. The most common use for this kind of suspension would be instances where dismissal would be the appropriate sanction, but the employer feels that mitigating circumstances of the employee warrant suspension rather than dismissal. Unlike preventative suspension, punitive suspension, as the name suggests, is unpaid and intended as a disciplinary sanction.
The suspension of an employee can be a very tricky practice which should always be dealt with thoroughly, carefully and in accordance with the law to ensure that the best interests of both the employer and employee are met. Obtain appropriate advice before any decision regarding suspension is taken. If you have been suspended, consider whether the requirements stated above have been met and obtain legal advice in instances where a potential unfair labour practice may have been committed.