- Employees are suspended from duty for different reasons that may include a pending investigation before a disciplinary hearing for misconduct, temporary lay-off due to operational reasons or during retrenchment consultations.
- In this article we are looking at suspension pending a disciplinary for misconduct and pending the outcome of such a hearing.
- The law does not require the suspension to be anything more than “fair”, and there is no minimum or maximum time period within which the investigation must be concluded, or in which the enquiry process finalised.
- Section 188(1) of the Labour Relations Act (“LRA”) says that a disciplinary process must be concluded in the shortest time possible, thus indicating that the suspension must not be prolonged longer than necessary.
When can an employee be suspended?
* IMPORTANT *
Before suspending an employee, you need to make sure that the circumstances of the alleged misconduct are grave enough to warrant the suspension and that there is a justifiable reason to exclude the accused employee from work.
In Mogothle v Premier of the North West Province & another  4 BLLR 331 (LC) the Labour Court noted that the suspension of an employee pending an inquiry into alleged misconduct is equivalent to an arrest, and should therefore be used only when there is a reasonable apprehension that the employee will interfere with investigations or pose some other threat.
Factors to consider prior to suspension
Do the facts give enough reason to suggest that the employee is indeed guilty of the said misconduct;
How serious is the said misconduct;
Is having the employee on the business premises going to interfere with the investigations;
Is the employee a danger to other employees especially the employees involved in the case; and
Is it possible that the employee may commit other misconducts.
How can we help Employers?
- Draft suspension policy
- Draft suspension notices
- Assist with disciplinary process
- Chair disciplinary hearings
The information shared on this article/blog/vlog should be read and understood within the current legal framework of South Africa. It is meant purely for educational discussion and does not amount to legal advice. For specific legal advice, please consult a legal practitioner prior to application.