New rule for suspensions

Before disciplinary inquiries, employers often ask whether they can suspend an employee on full pay pending the outcome.

We have always advised in the past that suspension could take place but only after a preliminary discussion with that employee or the employee’s representative.

Now the Constitutional Court has ruled that a precautionary suspension on full pay can take place without this consultation or discussion, going so far as to say the employer has a right to suspend without constituting a hearing at all.

It must be noted that the suspension must be on full pay and there must be a good reason for the suspension. For instance, the employer might believe the employee may interfere with witnesses, destroy evidence or behave in a negative manner, hence the need to suspend.

Obviously, if the employer’s disciplinary code allows for a hearing or there is some other need for a hearing, the employer must go through its own process for the suspension to be considered fair. Employers might therefore wish to review their disciplinary codes or disciplinary processes to remove the necessity for such a hearing before suspension.

Suspension without pay would invariably be unfair and could be deemed to be punishment in itself. Over and above this, if the suspension is for too long a period this will be challenged by the employee or the trade unions.

Michael Bagraim Via e-mail