A new twist in workplace suspensions
There are two types of suspension recognised in our law: precautionary and punitive suspensions.
Precautionary suspension is implemented as a preventive measure pending an investigation and/or disciplinary proceedings in relation to an employee’s alleged misconduct, during which an employee is paid.
Punitive suspension is implemented as a form of punishment further to an employee having been found guilty of misconduct. An employee is not paid during this type of suspension.
However, there are awards by commissioners of the Commission for Conciliation Mediation and Arbitration (CCMA) where suspensions have been considered in another context, for example where the dilatory conduct of the employee and/or their legal representative frustrated the expeditious finalisation of the disciplinary process.
This issue was considered by the Labour Court in Mark Strydom v Arcelor Mittal South Africa. Disciplinary proceedings were initiated against Strydom on January 31 2023. However, numerous postponements ensued and by February 2024, the process had still not been finalised.
The employer took the view that this was due to the dilatory tactics of the employee and his representative and, on the strength of the abovementioned awards, decided not to pay Strydom while the disciplinary process continued.
JURISDICTION
Strydom then approached the labour court on an urgent basis claiming that his “suspension” was unlawful. He had also referred an unfair suspension dispute to the Metal and Engineering Industries Bargaining Council.
The court found it lacked jurisdiction to consider the dispute. It did so on the basis that it could not consider a claim that the employer had
acted unlawfully. It also did not have jurisdiction to consider what was, in effect, a dispute dealing with alleged unfair labour practice in the form of a suspension.
However, during the course of its judgment, it made various points.
It reiterated the view expressed in a number of decisions to the effect that the drafters of the Labour Relations Act (LRA) envisaged expeditious disciplinary proceedings and contrasted this principle with the approach adopted in this case. It also criticised Strydom for approaching the labour court for relief in circumstances where the disciplinary proceedings were still under way.
Most importantly, while the court accepted that, besides the CCMA arbitration awards, there is currently no authority entitling employers to place employees on unpaid suspension due to dilatory conduct during disciplinary proceedings, it signalled that it may be high time that unpaid suspension be instituted in these circumstances.
UNFAIR
The court remarked that where an employee’s paid suspension is extended for an unreasonably long period due to an employee’s requests for postponements or dilatory conduct by the suspended employee, it would be unfair to apply the general principle that a suspended employee is entitled to full pay. The fairness of this approach would depend on the facts of each case.
The court appears to accept the notion that an employer’s refusal to pay an employee their salary in the circumstances mentioned above constitutes a fair suspension as envisaged in section 186(2)(a) of the LRA.
The question may, however, be asked whether the refusal to pay in these circumstances falls within the definition. Or does it not render the unpaid “suspension” a “disciplinary action short of dismissal” as defined?
This decision serves as a reminder of the following:
● Disciplinary hearings should be concluded swiftly and with minimal legal technicalities; and
● Approaching the labour court under the guise of unlawful conduct by the employer will not allow litigants to bypass the established LRA dispute resolution route — that could attract the imposition of legal costs.
It should be remembered, however, that an unlawfulness claim based on a breach of contract may still be entertained by the labour court.
IT SIGNALLED THAT IT MAY BE HIGH TIME THAT UNPAID SUSPENSION BE INSTITUTED IN THESE CIRCUMSTANCES
DISCIPLINARY HEARINGS SHOULD BE CONCLUDED SWIFTLY AND WITH MINIMAL LEGAL TECHNICALITIES