SUSPENSION from work has become a common phenomenon. This phenomenon happens at various hierarchal levels of employment, from janitors, management and even at executive level for falling out of favour of the Board.
As I write this article, I am mindful that many employees may be on suspension or may have been on suspension before. The purpose of this piece is therefore to provide insight on lawful requirements for suspension.
It outlines the fundamental differences between precautionary and punitive suspension applied by employers. The article concludes by providing available recourse and/ or remedies to unlawfully suspended employees.
Generally, employers should adopt disciplinary rules that establish the framework of conduct expected of their employees. These rules may vary according to the size and nature of the employer’s business.
Larger employers usually have written disciplinary policies. It is essential that where they exist, the rules must be clear and be made available to employees so as to create certainty of what is expected. Similarly, to spell out what sort of behavior will be tolerated and which will be punished.
Having said so, the next point of consideration is what happens to an employee who contravenes the policy. When the employer has reasons to believe that an employee has committed misconduct and the employer contemplates taking disciplinary action, the action must be preceded by an investigation in the allegations particularly where the allegations relate to gross misconduct.
The purpose of such an investigation is to provide the employer with an opportunity to ensure that the allegations against the employee are not groundless. The investigation will serve as a yardstick against taking precipitous action against an innocent employee which conduct may lead to employees becoming discontented.
The next logical question is whether or not an employer must suspend an employee suspected of gross misconduct pending the outcome of the investigation.
To answer this question, I’m inclined to refer to what the labour court has accepted as lawful requirements for suspension. The labour court in many cases has held that, for employer to effect a suspension, the employer must be satisfied that the employee committed a serious offence which has a bearing on his continued presence and which is likely to jeopardize the investigation into the alleged misconduct.
However, in doing so and where practically possible, the employee must be permitted to make representation on why he should not be suspended.
I wish to emphasise that suspension should be lawful in all circumstances. It should, when scrutinized, pass the requirements of section 48 (1) and (2) of the Labour Act, 2007 (Act No 11 of 2007).
This section prohibits unfair disciplinary action against employees. The prohibition related to all forms of disciplinary action including unfair suspension.
In order to determine whether or not the suspension is fair, it is essential at this point to differentiate between preventative (precautionary) and punitive suspension. Precautionary suspension is seemingly the most common form of suspension. The purpose is to inform the employee of the imminent investigation in order for the employer to make a decision on the formulation of charges.
Precautionary suspension must be fair, thereby complying with the requirements of both substantive and procedural fairness. Substantive fairness in this respect entails sufficient reasons for the suspension. Such reasons could include, but are not limited to, the employer having justifiable reasons for believing that the employee is involved in serious misconduct which justifies the suspension.
As it was stated earlier, factors to be taken into account could include the employer’s perceived fear that the employee may interfere with the investigation or witnesses or where the employer fears reoccurrence of the misconduct and/or where the seniority or authority of the employee in question has a bearing on the matter.
Procedural requirement on the other hand, requires giving an opportunity (although not a trite provision) to an employee to make representation before suspension is considered. I submit that although it is not a strict requirement, it is advisable and good practice to do so. The purpose is to afford an employee the opportunity there and then to give an input about whether he should be suspended. If the employee cannot persuade the employer to consider otherwise, the employee can then be informed of his suspension preferably in writing. I should stress here that it is indeed a bad practice and an unfair labour practice for an employee to learn about his suspension on radio or on television at news time and when coming to work, only to discover that he is barred from entering the workplace.
The employee must be informed personally in writing and given reasons for the suspension and any conditions thereto.
Matters such as the continuation of remuneration and whether the employee is relieved of any or all of his duties and if he is restrained from entering the workplace should all be included in the suspension letter or notice.
Suspension with pay
The general rule is that the employee on precautionary suspension should continue to receive his remuneration during the course of the suspension. Many employers have difficulties accepting this rule, in the view that the employee suspended on gross misconduct is going to end with some sort of paid holiday while awaiting for the disciplinary hearing. Irrespective of their fears, employers ought to remember that the suspension is merely precautionary while the employee’s guilt is being investigated. Suspending an employee without pay in this case would be unlawful and unfair in that it is aimed at punishing the employee financially. Such action by the employer can be in breach of the contract of employment and contrary to section 29 (a) of the Labour Act 2007.
The Labour Act considers the suspension period as a period of employment during which period, the employee is entitled to receive all the terms and conditions of employment as normal until such time as the matter is concluded. The employee on paid suspension may, on the other hand, not use the opportunity to supplement his income by seeking another employment elsewhere whilst on suspension.
Suspension without pay
Suspension without pay may generally be permissible if the employee consents to it or if provided for by legislation (in which case, our labour legislation does not provide) or the contract of employment itself. The common practice is that suspension without pay is normally considered as a disciplinary outcome imposed as an alternative to dismissal.
In my view, this type of sanction is not advisable given the purpose of a disciplinary policy which should first and foremost be to “correct behavior and not punitive”.
I therefore argue that suspension without pay is a severe punishment and does not demonstrate any effort on the part of the employer to correct the employee’s behaviour, by showing where they went wrong and reprimanding repetition as to improve the conduct in question.
Remedy for unlawful suspension
Suffice to state here that precaution must be exercised when dealing with suspension of an employee. Where an employee has reasonable apprehension that the suspension was effected for insufficient or no reason (or without a fair procedure) such an employee can seek remedy under the unfair labour practice jurisdiction. All that is required of the employee is to allege an unfair disciplinary action relating to suspension as provided for in section 48 (1) and (2) of the Labour Act and the burden will shift on the employer to prove the contrary.
Besides reasons pertaining to substantive and procedural flaws, suspension can be equally unfair if it is imposed for an unreasonable period, particularly, where the suspension period is limited by a disciplinary code.
In such a case, the employer is obliged to comply with its disciplinary code by holding the hearing as soon as “reasonable practicable” in terms of the timelines set out in code. The employee should not be left in the dark for an unreasonable long period.
Disputes relating to unfair suspension are covered under section 51 of the Labour Act. Such disputes must be referred in writing to the Labour Commissioner for arbitration in accordance with Part C of Chapter 8 of the Act.
What is an appropriate remedy to be awarded, will depend on the reason why the suspension is alleged to be unfair.
In some cases, an employee may be justified to seek an order of reinstatement from the arbitrator as provided for in section 86 (15) (d). This will be more appropriate relief where the suspension has been for an unduly long period with no real prospect in sight of a disciplinary hearing taking place or where the suspension is substantively and procedurally grossly unfair. This may include such cases where the suspension is simply a “dressed up attempt” by the employer to dismiss the employee in a disguised predetermined dismissal.
• Dr Felix Musukubili is the Director for Labour Services in the Ministry of Labour and Social Welfare. The views expressed hear are his personal views. He holds a Doctorate of Laws (Mercantile Law) from Nelson Mandela Metropolitan University.
By Dr Felix Musukubili