When an employer temporarily requires an employee to vacate its premises and
to stop performing his/her duties this is called ‘suspension. The effect of a
suspension is that the employee is not allowed to return to work until the
employer instructs that he/she may do so. Such suspensions normally occur:
While the employer is investigating misconduct/poor performance allegations
against the employee
While the employer and/or employee are preparing for a disciplinary hearing
After the employer has decided that the employee is guilty of misconduct/poor
performance.
In our experience the reasons that motivate employers to suspend employees
include:
To remove the employee from the workplace as a means of preventing
him/her from causing further harm by repeating the alleged misconduct or
poor performance
To prevent the employee from interfering with the investigation instituted
against the employee
To avoid disharmony at the workplace that could be caused due to the
employee’s awareness that he/she is being investigated
As a result of the employer’s anger. That is, the employer is so furious with
the employee due to his/her alleged actions that the employer wants the
employee ‘out of my sight!’
As a means of retribution. The employer wishes to humiliate or demean the
employee or otherwise punish him/her for the alleged offence.
Often, especially when the employer evicts the employee in a fit of anger, it is
unclear whether the employee has been suspended (evicted temporarily) or
whether the employee has been fired. This is because the employer shouts at
the employee to ‘get the @#&*!!€» out of my face!’
Regardless of whether such evictions are meant as suspensions or dismissals
the affected employees more often than not go to the CCMA or bargaining
council claiming unfair dismissal and/or unfair suspension. Especially where the
eviction takes place while the employer is in a fit of anger the employer loses the
case.
Labour law does not prohibit employers from suspending employees but does
allow employees to challenge the fairness of suspensions. Section 186(2)(b) of
the Labour Relations Act (LRA) defines as a type of unfair labour practice “the
unfair suspension of an employee”. Section 191(1) allows an employee to refer
an alleged unfair labour practice to the CCMA or to a bargaining council. Where
the employer has suspended the employee for an unfair reason or in an unfair
manner the employer can be forced to pay the employee compensation or lost
wages or to lift the suspension.
In the case of CEIWU obo Khumalo vs SHM Engineering cc (2005, 10 BALR
1009) the employee, a boilermaker was accused of failing to obey an instruction
from his superior and was therefore suspended for six weeks. The employee’s
excuse for defying his superior was that his superior had screamed at him. The
arbitrator found that this was not a sufficient reason for disobeying a reasonable
and lawful instruction and that the employee’s behaviour constituted gross
insubordination. However, the arbitrator found the suspension to be unfair and
ordered the employer to pay the employee for the full period of the suspension.
The arbitrator’s rationale for this was that, while the suspension might have
started out as a “holding” measure, it became punitive due to its unreasonably
long duration.
In the case of Sajid vs Mohammed NO & others (1999, 11 BLLR 1175) the
employee, who worked as an Imam for a mosque, was suspended from duty.
The charges against him included removal of copies of notices, persuading
congregants to make false statements and failure to attend prayers. The Labour
Court found that there was no evidence to prove that there had been a
breakdown in the employment relationship and that the suspension had been
unfair. The Court ordered the employer to lift the suspension.
In the case of MEC for Tourism and Environmental Affairs Free State vs
Nondumo & others (2005, 10 BLLR 974) the employee was suspended after
being charged with several counts of misconduct. The Labour Court found that
the suspension was unfair and ordered the employer to pay the employee
compensation and lost pay amounting to R840 000.
In the light of the above employers are advised to avoid suspending employees
unnecessarily or due to anger and to obtain expert advice before acting against
employees.
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