Suspending an employee, part II

In my previous post, I argued that an employee should be given an opportunity to be heard on why he should be suspended before he is suspended. However there are situations where an opportunity to be heard after an employee is suspended may be fair. 

As set out in my previous post, the right to be heard before being suspended arises from the rules of natural justice. Our courts have recognized that a hearing or opportunity to be heard after the decision has been made fulfills the requirements of natural justice. In Mamabolo v Rustenberg Town Council click here , the Supreme Court of Appeal said that:

'In certain instances a court may accept as sufficient compliance with the rules of natural justice a hearing held after the decision has been taken, where:

There is a sufficient interval between the taking of the decision    and its implementation to allow for a fair hearing; The decision-maker retains a sufficiently open mind to allow himself to be persuaded that he should change his decision andThe affected individual has not thereby suffered prejudice.' 

This principle was also endorsed by the Labour Appeal Court in Semenya & Others v CCMA & Othersclick here, where the court had this to say: 

The third respondent’s contention that the opportunity to be heard was not good enough because it was offered after the decision to dismiss her had been taken requires close examination. It is not our law that an opportunity to be heard that is given after the relevant decision has been taken is never good enough. Although generally speaking such an opportunity should be given before the decision can be taken, there are circumstances where an opportunity to be heard that is given after the decision has been taken is acceptable...I do not propose to set out a list of situations where an opportunity to be heard that is given or offered after the decision has been taken is acceptable. Probably it is not advisable to attempt to give an exhaustive list of such situations. However, it seems to me that, where it can be said that the opportunity to be heard that is given after the decision has been taken is no less fair than the opportunity that should have been given before the decision could be taken, it ought not to make a difference that it was offered after the event'

It seems to me that the general rule is that an opportunity to be heard should a general rule be given before the decision is made to suspend. However there are certain situations where an opportunity to be heard after the decision is made is acceptable. The guiding principle is whether it would be fair to do so. Fairness here is a function of two considerations. Firstly, whether the decision makers mind remains open and the opportunity to make representations is real and not merely "lip service.” Secondly, where there has been no prejudice to the employee or where the hearing after the fact cures the prejudice. 

In light of the above, I would like to amend my original advice on the steps to take when suspending an employee and add the following addition, amendment, or proviso. If giving the employee an opportunity to be heard before he or she is suspended is impractical or where it would be counter productive, I would adopt the following procedure. I would, as suggested before with as little fanfare as possible give the employee a notice of provisional suspension, stating the reasons of the suspension and give him or her an opportunity to make representations as to why the provisional suspension should not be made permanent. In addition, if possible I would have my HR manager conduct this process and then direct the employee to make representations to another higher-level manager. In other words the decision to suspend the employee provisionally should not be made by the same person who is to make the decision as to why the suspension should not be confirmed. 

An example of the relevant notice could be as follows:

' Dear Mr. X

 We have made a provisional decision to suspend you. The reasons for this provisional decision are as follows:

1. 

2. 

etc 

You have until the______________ to make written representations to Mr. Y , the M.D as to why the provisional suspension be confirmed. If the decision is confirmed you will be suspended on full pay pending the outcome of a disciplinary hearing’

Suspending an employee pending disciplinary action

Suspension as a holding operation

There are two categories of suspension. There is what has been called suspension as a 'holding operation'. This refers to a situation where an employee is suspended pending the outcome of disciplinary proceedings. There is also suspension as a form of disciplinary action. This post will focus on the former. I will look at the procedures that need to be followed in suspending an employee and when or for what reasons you can suspend an employee pending the outcome of disciplinary proceedings. 

The applicable legal principles

Prior to the decision of the Labour Court in Koka v Director-General Provincial Administration North   West Government [1997] 7 BLLR 874 (LC), there were conflicting views as to whether suspension as a holding operation fell within the ambit of the unfair labour practice definitions of the Labour Relations Act. The significance of this issue was that if it did, employees could refer a dispute to the CCMA if they were suspended pending the outcome of disciplinary proceedings and could be awarded, amongst other forms of relief, compensation, if it was held that the suspension was unfair. In Koka, the Labour Court held that suspending employees as a holding operation did fall within the ambit of a "labour practice" as contemplated by the unfair labour practice provisions of the act. The Koka decision was also significant in that it now followed that an employer had to have a fair reason for suspending and employee and had to follow a fair procedure in suspending an employee.

However, it seems that an employee may have other causes of action if they are suspended in this manner. Firstly, there may be other statutory provisions, which regulate the issue such as in the case of public service employees. Secondly, there may be a collective agreement dealing with the issue. Thirdly, there may be contractual provisions, which regulate the issue of suspension. In a number of cases it was held that there was an implied term in any contract of employment that employer had to deal with the employee in a fair manner. However, it seems that this contention has been rejected by the Supreme Court of Appeal in SA Maritime Safety Authority v McKenzie (2010) 31 ILJ 529 (SCA). A person seeking to rely on a contractual cause of action in respect of a suspension cannot rely on some general implied term of fairness. They could only rely on express or tacit terms of the contract dealing with the issue of suspension or fairness. 

A right to be heard before being suspended

In Koka (supra), the court per Landman J as he then was held that there was no right to be heard or to make representations before a decision is made to suspend. A number of decisions by the Labour Court, as well as arbitrators of the CCMA or other bodies held the view that there was no right to be heard before being suspended. However, a number of recent decisions have held that that a person has a right to be heard as to why they shouldn’t be suspended before they are suspended. The reason for this is most recently expressed in Dince & Others v Department of Education Northwest Province, where the court stated that because a suspension affects one's right to dignity and to work, an employee must be given an opportunity to be heard before a decision is taken to suspend him or her. The court based the right to be heard in the concept of fairness, citing case authority for the fact that the audi alter pater principle is merely an expression of the requirement of fairness. In light of the Mckenzie (supra) decision, the right to be heard cannot be located in some general implied contractual term to deal fairly, but these decisions still support the contention that the principle of fairness, as contained in the LRA, would require that a person be given an opportunity to be heard before a decision is made to suspend them. 

Of course there are always exeptions to the rule and there may be certian situations where a failure to give expression to the right to be heard would not be unfair. These are the so called ‘emergency’ situations and are seen in the context of a suspension where giving a person a right to be heard would be impossible or would result in damage to persons or property. 

Do you have to have a reason to suspend? 

Typically, employers suspend employees where the charges against them are serious, such as theft, fraud or assault. However, in a number of recent decisions by the Labour Court (for example, see Mogothle v Premier of the North West Province & anotherCity of Johannesburg Metropolitan Municipality v SAMWU & others and Dince (supra) ), the courts affirmed that three requirements must be met before an employee may be suspended. The first has been already dealt with, namely an employee must be afforded a right to be heard before he or she is suspended. The other two requirements are that the employer must be satisfied that the allegations against the employee are serious and that the employer must establish that the continued presence of the employee at the workplace might jeopardize any investigation into the alleged misconduct, or endanger the well-being or safety of any person or property. It is not enough that the allegations are serious. The second part of the reasoning process must be satisfied. 

Must an employee be paid whilst on suspension?

Unless a contractual or collective agreement allows you not to pay employees during a suspension or unless the employee consents to this, the failure to pay a person during a suspension would constitute a breach of the contract and or of the Basic Conditions of Employment Act. I am aware of one arbitrators decision which held that if the period of the suspension is extended as a result of a request of a postponement of the disciplinary proceedings by the employee, it is not unfair not to pay for that extended period. However, the reasoning in this decision is dubious and even if it was not unfair, it would be unlawful and the employee would be able to claim under the BCEA or contract for payment of those monies. So as a general rule, the employee must be paid during the period of suspension. 

Conclusion(s)

In light of the aforementioned legal principles, before suspending an employee, I would apply the following principles:

1. Conduct a proper investigation. Ensure that the allegations are serious. Serious allegations would include dishonesty, especially theft or fraud, assault threatening or intimidating behavior or harassment or competing with the business. Look for evidence that would support the contention that if the person is not suspended they are likely to interfere with the investigation, such as destroy evidence and or threaten or intimidate witnesses etc, or to support the contention that there is a reasonable risk that they may destroy company property or hurt persons. A reasonable apprehension of this may arise as a result of the nature of the alleged misconduct and or out of the circumstances under which the misconduct is alleged to have taken place. For example, it may be argued that in the event that the circumstances are that an employee is suspected of threatening or assaulting an employee, a reasonable suspicion that the employee may harm that employee once he has learnt of the charges against him may be sustainable. However, there must be substance to the allegations in the first place. 

2. Inform the employee that you intend to suspend him or her, give the reasons and invite the employee to make representations as to why they should not be suspended. This need not be a formal hearing but an informal discussion. The dilemma employers face is that they think that if employees are given time to make such representations, they may cause damage. However, there are ways in which the risk of this may be mitigated. Firstly, you could do it at the end of the working day and give the employee a chance to make representations by the start of the next working day or in certain situations, where you feel that the employee may damage property or contact fellow employees even if given a short time to make representations, you could ask them to make representations to you immediately after you have informed them of your intention to suspend and the reasons therefore. 

3. Don't make a spectacle of it. The less other employees know about and the more privately it is done, the better. This is so because the impact on the employee’s dignity in such circumstances is diminished and this may have an impact on the fairness of the suspension or the compensation awarded in the event it is found to be unfair.

4. Ensure that the period of suspension is for a short as period as possible.