This is the post for 27 Deember

Following the rules is not always easy, however having said that, if you don't - you will pay the penalty. If you're not sure about what you are doing, please contact a reputable Labour Attorney!

Keeping suspensions fair and in line with law
14 September 2007 at 11h00

In general, suspensions are customarily used during pre-disciplinary investigations and pending the outcome of a disciplinary hearing. They are a daily occurrence in the employment relationship and are regulated contractually, by means of the disciplinary procedures laid down, via the company's very detailed suspension policies, or by practice.Suspensions, per se, can become quite problematic. The great number of CCMA arbitration and Labour Court cases dealing with this issue bears testimony to this.

One also has to have due consideration for the number of different issues that have to be considered when delaying suspensions. These issues include, for example, the need for and the duration of the suspension period, the prejudice suffered, as well as demands for disclosure of information, constructive dismissal claims lodged due to resignation during lengthy suspensions, and so on.

In a hearing that I chaired recently, the accused employee insisted that a specific attorney represent him. This particular hearing was scheduled to last five days. The attorney could only accommodate the five days over a three-month period. This was obviously an unacceptable situation and I gave the accused various options in order for the hearing to proceed more speedily, including a four-day postponement in order to secure another legal representative. I also offered the accused the option to hold the hearing over the three-month period, with his original attorney, representing him, on the condition that he accepts this period of suspension as being unpaid. The employee declined this offer and the hearing proceeded as originally scheduled with the accused and without him being represented by his attorney.

Deviating from the customary principle of changing a suspension with pay to one with no pay was considered in the matter of Msipho and Plasma Cut (2005) 26 ILJ 2276 (BCA). It was determined that the employer's failure to pay an employee during a period of postponing the hearing was not an unfair labour practice, obviously depending on the prevailing circumstances. In this matter, the accused employee, a shop steward, was suspended on full pay pending a disciplinary hearing.

As a shop steward he was entitled to be represented by a union official who was not present on the day of the hearing. The accused requested a postponement in order to enable him to secure the attendance of the union official. This postponement lasted six weeks. The employer refused to remunerate the employee for this six-week period and the employee alleged same to be an unfair labour practice. In his ruling the arbitrator viewed the matter as follows:

That a normal suspension pending the outcome of a hearing was originally instigated by the employer who, therefore, remained liable to pay the employee during the suspension period.
That, in this case, the employee was well aware of the original date of the hearing and that it was his responsibility to secure the attendance of a union representative on that day.
That it was unfair to prejudice the employer for the employee's failure to discharge his responsibility.

As such, the arbitrator determined that it might be unfair to expect an employer to be liable for remuneration where a postponement is at the insistence of an employee, "otherwise, employees would find reason to delay disciplinary proceedings, as this would always be at the employer's cost".

In the more recent case of SAEWA obo Members (2007) 2 BALR 106 (MEIBC) the applicant argued that the company, having changed the suspension conditions to an unpaid basis, without consulting, committed an unfair labour practice. In this matter, the union official, representing the accused employee, was unavailable due to prior commitments. The arbitrator ruled that, as the suspension was extended at the request of the employee, it would be unfair to expect the employer to pay for such additional period of suspension.Employers are however cautioned not to insist on non-payment for all the adjournments/postponements requested by an accused employee as, in order to ensure procedural fairness, many such requests could be reasonable.

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.