SUSPENSION WITHOUT PAY CAN BE VIEWED AS UNFAIR

I am not sure how to put this other than just to say it - follow the letter of the law, when it comes to disciplinaries - if you don't you will end up at the CCMA and you will lose. If you are in any doubt, get the LEGAL opinion of a LABOUR ATTORNEY - not a labour consultant, or someone who used to work in an HR environment! Get proper legal council, it will in the long run be a lot cheaper than if you don't!

Suspension without pay can be viewed as unfair
Pierre Marais

06 September 2007 at 06h00

Suspending an employee pending a disciplinary investigation and disciplinary hearing is an acceptable industrial relations practice. And its is also quite common that this suspension will be on full pay. The general rule of fairness is that suspensions of this type are not without pay as employers could fall foul of their own disciplinary procedures, codes and practices and/or an unfair labour practice claim in terms of the LRA's Section 186 (2) (b) relating to "unfair suspension".

In these circumstances, suspension without pay could also be viewed to be "unfair disciplinary action short of dismissal". However, back in the real world, employers are frequently being frustrated by postponements during a disciplinary hearing which can cause the hearing to be delayed and the suspension to stretch over weeks or even months. This also has as effect that operational uncertainty exists in the workplace. For example, other employees will need to do the suspended employee's work, no replacement can be finalised, timeout finality is not reached and it also affects morale, especially where a manager or an executive is the accused, and so on.

From the accused employee's point of view, the dragging out of a hearing means being paid longer, especially in cases where the offence will possibly lead to a dismissal. Conversely, an employer is prejudiced financially, especially where the employee is on a substantial monthly package and has to be paid during the period of suspension. In some instances employers' own historical practices and/or contractual obligations could cause a waste of time and be costly, for example:

A lengthy investigation has to be undertake prior to even starting with the hearing. The complexity of the case may justify such a time period, however, in some cases it is also attributed to employer apathy in that they do very little to move matters along. We often read about these 12 month-long suspensions with no finality in sight.

Some disciplinary procedures and/or employment contracts dictate onerous procedural obligations which could frustrate proceedings such as:

Pre-dismissal arbitration, where it takes a few weeks to arrange.
Access to information.
Entitlement to external representation which, together with the (un) availability of the other parties, could lead to difficulty on agreeing dates, especially if the hearing is going to last a few days.In particular with senior employees who generally can afford legal advice, the raising of procedural technicalities forces the hearing's chairperson to deal with these. This could be very time-consuming as borne out in a recent case where three days of the first six days of a much longer hearing, were taken up with the arguing of various technicalities and the chairperson's rulings.

It is also possible that a frivolous CCMA referral for unfair suspension and a legally flawed and frivolous "urgent" application to the labour court to suspend the hearing from proceeding could be thrown into the equation. Then a hearing becomes messy and the patience of both parties can be seriously tested. In an endeavour to pro-actively manage unnecessary delays in finalising a hearing, employers normally do so in the "notice to attend a disciplinary hearing" by, for example, notifying the accused employee to ensure that his/her witness (es) and representative are available, scheduling fixed dates in advance, and so on. Customary reasons for a postponement could include a request for more details (eg documents) in order for the accused employee to prepare properly, requests for an adjournment after a witness's evidence-in-chief in order to prepare for cross-examination; insufficient time to consult with a (legal) representative or due to the unavailability of the representative, etc.

Employers are cautioned that incorrect handling of any one of the aforesaid aspects, because they are hell-bent on just concluding the hearing, may lead to an arbitrator's ruling of a substantively fair dismissal, which, because of the delays, is ruled procedurally unfair. In such cases the commissioner can award the dismissed employee a few months' compensation. Next week we will discuss a few actual cases where suspension without pay was determined to be fair.

Pierre Marais is managing director of the Labour Law Group. Contact him on 011-679-5944.

Back copies of articles can be obtained from Natasha at 011-679-5944.