Legal provisions on suspension of employees
AN employer has rights at common law and in terms of an employment code of conduct, where one exists, to suspend an employee.
An employer who wishes to raise allegations of misconduct against an employee may, in terms of the applicable Code of Conduct, suspend the employee, with or without pay and other benefits, pending a disciplinary hearing.
An employer need not suspend an employee in every case where good cause exists to charge the employee with a misconduct.
Suspension may be necessary where the employer needs to investigate the employee without interference. Removing the employee from the workplace may stop interference with witnesses or tampering with evidence by the employee.
An example of a code of conduct which provides for suspension of an employee is the Labour (National Employment Code of Conduct) Regulations, 2006.
Section 6 of that Code of Conduct provides in relevant part:“(1) Where an employer has good cause to believe that an employee has committed a misconduct mentioned in Section 4, the employer may suspend the employee with or without pay and benefits and shall forthwith serve the employee with a letter of suspension with reasons and grounds of suspension.
(2) Upon serving the employee with the suspension letter in terms of Subsection (1), the employer shall, within 14 working days, investigate the matter and conduct a hearing into the alleged misconduct of the employee and, may, according to the circumstances of the case, serve a notice, in writing, on the employee concerned terminating his or her contract or employment, if the grounds for his or her suspension are proved to his or her satisfaction.
The reading of the above section, establishes the following:An employer must have good cause to believe that an employee has committed a misconduct as defined in Section 4 of the Regulations.
In that case, the employer may suspend the employee with or without pay and benefits. The employer must forthwith serve on the employee a copy of the letter of suspension with reasons and grounds of suspension.
The employer shall investigate the matter and conduct a hearing into the alleged misconduct within 14 days of serving the employee with the letter of suspension.
After the verdict is reached, the employer shall serve a notice on the employee either terminating the employment, if the allegations of misconduct have been proved against the employee, or removing the suspension where the grounds of suspension are not proved. A suspension must be based on a belief that a misconduct as defined has been committed. An employer must have good cause for such belief. Only when there is a good cause to believe that the employee has committed a misconduct may the employer suspend the employee.
The procedure outlined in s 6 of the Code has to be followed where the employee is suspected on reasonable grounds of having committed an act of misconduct. An employer need not suspend an employee in all cases.
If the employer does not have reasons to believe that a misconduct has been committed, he or she cannot suspend the employee on any other ground.
It is on good cause to suspect a commission of a misconduct that a suspension pending a disciplinary hearing can be made.
If 14 days lapse before the hearing is conducted and concluded, the suspension automatically lapses.
The effect of that is that the employee is deemed to be automatically reinstated.
However, other decided cases suggest that delay alone cannot justify reinstatement and that delay merely gives the aggrieved party the right to the remedy of an order to enforce due compliance with any time limits.
Whether the fourteen (14) day requirement applies to the entire proceedings or only to the investigations is a matter for another day.
Where the suspension is set aside and re-instatement is ordered by a court, any verdict or penalty imposed pursuant to any allegation made as part of the reason for the suspension fall away.
The suspension and the misconduct alleged against an employee are inextricably intertwined. There can be no valid suspension where there is no misconduct alleged against an employee.
In Stella Nhari V Zimbabwe Allied Banking Group SC51/13, an employee obtained a court order setting aside her suspension and reinstating her to her former position without loss of salary and benefits on the basis that the employer had failed to conclude the matter within the period of fourteen (14) days.
Another reason was that the suspension was unlawful as no act of misconduct had been committed.
Where an employer decides to suspend an employee, he or she must comply with the requirements outlined in the law.
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