The Manica Post

Legal provisions on suspension of employees

- Trust Maanda Post Correspond­ent

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.

Trust Maanda is a legal practition­er and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646.

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