SUSPENDING AN EMPLOYEE AS A PRECAUTION
It is often necessary to suspend a Temporary and or Contract Employee (Assignee) or Permanent Employee (hereafter referred to as the Employee) as a precaution or to remove the Employee from the workplace to allow for the investigation into misconduct to complete prior to issuing the notice to attend the disciplinary hearing.
Suspension is a category of unfair labour practice, and until a few days ago it was a requirement to hold a pre-suspension hearing prior to deciding to suspend, allowing the Employee to argue against it.
This has now changed.
The Constitutional Court has ruled that in the event of a precautionary suspension there is no need to conduct a pre-suspension hearing. The Employee is not prejudiced because he is receiving full pay during the suspension period, regardless of how long the suspension is. The precautionary nature and the fact that full payment still applied undo the unfair labour practice.
In Long vs South African Breweries, the Constitutional Court ruled that there is no need for a pre-suspension hearing.
At the CCMA the arbitrator pertaining to the above decided that the suspension was an unfair labour practice because there had been no pre-suspension hearing and the suspension was unreasonably long. The Labour Court and Constitutional Court thus disagreed.
