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Stay at home, and let’s work together to combat COVID-19. For more information visit: www.sacoronavirus.co.za

You have been suspended, now what

You have been suspended, now what

Nozipho Mvulane

Being suspended from your job can often come as a surprise. Some employees may not always know what to do. We have briefly outlined the steps to a fair suspension and what your options are should you find yourself in a situation of unfair suspension where you have not been found guilty of misconduct.

 Preventative or precautionary suspension

This is a temporary measure taken by an employer to remove the employee from the workplace while a misconduct investigation is conducted. The concern is that if the employee remains at work, he or she could hamper the investigation by:

  • intimidating witnesses;
  • destroying documents; or
  • computer records.

This kind of suspension is on full pay and because the employer continues paying the remuneration, it is lawful (there is no breach of contract). If the employer has a reasonable sense that the investigation will be compromised or that the business operations will be disrupted, a preventative suspension will usually be fair.

Fair suspensions criteria

A suspension will be fair provided the following three criteria are met, a precautionary suspension would be fair:

  • there must be a fair reason for the suspension;
  • it must not cause undue prejudice to the employee; and
  • it must not “endure inordinately long” without good reason.

Fair Reasons for suspension

The following are generally accepted as being good reasons for precautionary suspension:

  • the employer has good reason to believe that the employee has engaged in serious misconduct (providing an example);
  • the employee’s presence might jeopardize the investigation;
  • the employee might repeat the misconduct; and
  • the wellbeing or people or property may be at risk.

Precautionary suspension must be causally linked to a pending investigation or process, whether relating to misconduct, incapacity or for operational requirements. It must serve to protect the integrity of the investigation or process or mitigate risks to the employer while the investigation or process is ongoing.

Undue prejudice on employees reputation

The reputational harm or career prejudice when it comes to benefits and advancement caused by the suspension cannot and must not detract from the prerogative of the employer to institute precautionary suspension. Provided the employer has a good reason for suspending and the suspension is on full pay, these kinds of considerations should not be relevant in deciding the fairness of a precautionary suspension.

Pre-suspension hearing

Before an employee’s suspension comes into effect, the employee must be given an opportunity to make representations as to why they should not be suspended. Similarly, an invitation to make written representations on relative short notice will suffice.

Most employers have included this requirement in the Notice of Suspension, giving the employee 24 hours to make representations. Some have afforded the employee the opportunity to make their representations at a hearing whilst others merely require written representations. In a pre-suspension hearing, the focus should be on whether the employee should be suspended, not on whether the employee is guilty of the alleged misconduct.

No suspension period specified

In some sectors, companies or organisations, suspensions seem to go on forever. Generally, the length of a suspension should be laid down in the employer’s disciplinary code and procedure. As a rule, suspension of senior managerial employees is for a longer period. A suspension may be extended, of course, if the investigation runs into trouble. But the disciplinary enquiry should be scheduled as soon as possible because a suspension for an unreasonably long period will be unfair.

Suspensions must be fair

The courts have reiterated time and time again that suspensions must be done in a fair, transparent, and consistent manner. It is important there where an employer has a disciplinary code and procedure, that it addresses suspensions. its is also important that employees know what they can and cannot do before and during their suspension.

For more information, contact Rajaram Mvulane Attorneys at info@rajarammvulane.co.za

Article Disclaimer

This article is not intended to provide legal advice. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

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