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’