When is suspension unfair?

“WHAT can I do if I have been suspended for a month without being charged with anything?” was a question that recently came up on our Facebook page.

Here, Scorpion Legal Protection will look at the labour laws around suspension.

Suspension can be carried out for one of two reasons:

1. Precautionary suspension

2. Punitive suspension Precautionary suspension is when the employer removes an employee because they’re carrying out an internal investigation and don’t want the worker in question to interfere with this.

They suspect the employee is involved in misconduct. During this suspension, the employee still receives their salary and benefits.

Punitive suspension is used as part of the disciplinary process and is meant to punish the employee.

It means the correct disciplinary processes were followed, because suspension is basically only less serious than complete dismissal from the company.

In this kind of suspension, you’ll not receive pay or benefits.

Procedure for suspension

The employee must be given clear reasons why he or she is being suspended.

In the case of punitive suspension, the employer must have carried out the disciplinary process and an employee must be given the opportunity to state their case and reasons why they shouldn’t be suspended.

With precautionary suspension, where you’re getting full pay and benefits, the employer doesn’t have to give the employee an opportunity to give reasons why they shouldn’t be suspended.

The employer must send the employee a letter informing him or her of their suspension and state how long the employee will be suspended for.

The employee must also be told what will happen after the suspension and the investigation.

How long can you be suspended?

Usually, suspension is 30 days or less, because investigations must be carried out quickly and efficiently.

However, labour laws don’t specify a minimum or maximum period for suspension, except to say the length of suspension must be fair and reasonable.

What is an unfair suspension?

A suspension can be unfair if:

• The suspension is punitive, but the company did not follow the disciplinary process.

• You’re not given an opportunity to explain and defend yourself, even though the company’s policies say you must be given this opportunity.

• Your suspension isn’t directly linked to protecting the ongoing investigation into the matter. The company must be able to show why you’d be a threat or interfere with their investigation if you continued to work.

• You receive a precautionary suspension, but are not paid your full salary and benefits.

• The suspension is unreasonably long. What counts as unreasonable is open to interpretation.

Unfair suspension can be taken to the CCMA. You can refer the matter for investigation. If successful, it could rule that the company must lift the suspension and award you compensation.

If you have a query, ask Scorpion Legal Protection on Facebook or ask your question during our next Live Q&A (every first Thursday of the month).

* This is only basic advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.