19 July 2024
Employers often use precautionary suspensions while investigating employee misconduct. The presupposition (and standard practice) is that the employee would be suspended on full pay pending the disciplinary inquiry.
Still, this practice could cause frustration for the employer when the employee proceeds to delay disciplinary proceedings and the matter never reaches finality. This leads to whether suspension without pay would be an option and, if so, whether this would be the appropriate recourse for the employer.
Case Studies
Over the years, our courts and forums have dealt with several disputes surrounding paid suspension pending disciplinary inquiries, its application, and its effects. The consensus is that the employer bears the onus of expeditiously dealing with their labour disputes while balancing their prerogative to investigate the alleged misconduct and ensuring that the suspension does not amount to an unfair labour practice.
In Msipho and Plasma Cut (2005) 26 ILJ 2276 (BCA), an employee was suspended on full pay pending their disciplinary inquiry for alleged misconduct. At the time of the disciplinary investigation, the employee wanted to exercise their right to have a representative present with them in the investigation. Their union official was not present, so the inquiry was postponed for six weeks to enable the employee to secure the attendance of their representative.
However, the employer did not pay the employee during the latter six-week period, and the employee referred an unfair labour practice to the Centre for Dispute Resolution, claiming that he was entitled to be paid for the full suspension period. The arbitrator found that it was the employee’s responsibility to secure the attendance of their representative for the initial inquiry date, and he failed to discharge this onus.
Also, as the postponement was granted at the employee’s instance, the employer was not liable for remuneration for the extended six-week period. Otherwise, employees would find reasons to delay disciplinary proceedings at their employers’ cost. The arbitrator found that this was not an unfair labour practice. The same principles and approach were echoed in the matter of SAEWA obo Members and Aberdare Cables [2007] 2 BALR 106 (MEIBC).
More recently, in the matter of Strydom v ArcelorMittal South Africa (J 1764/2023) (2024) 45 ILJ 931 (LC) (27 December 2023), a disciplinary inquiry was initiated for the employee on the 31st of January 2023 and he was placed on suspension with full pay pending the outcome thereof. Unbeknownst to the employer, a series of postponements and delay tactics by the employee and his legal representative ensued, whereafter, the parties eventually agreed that the matter be postponed for one final time to the 1st and 4th, and 10th and 11th of February 2024.
In the meantime, on December 5, 2023, the employer informed the employee that his further suspension would be without pay. This is when the employee approached the Labour Court, claiming that this constituted an unfair labour practice. Regarding jurisdiction, Judge Prinsloo noted that disciplinary inquiries are to be conducted simply and expeditiously and should not be treated as criminal hearings.
Moreover, when employees are suspended pending their disciplinary inquiries, and the delay in the inquiry leads to an unreasonably long suspension extension due to the employee’s continuous requests for postponements or other reasons, it would be unfair to apply the principle of full pay for their suspension. The Court echoed previous arbitration awards where unpaid suspension was justified due to employees’ delay tactics.
Conclusion
These cases confirm that disciplinary inquiries are to be conducted and concluded expeditiously, with minimal legal technicalities and without any malintent or use of delay tactics. Moreover, once an employee is suspended on full pay, no reason should exist for them to unnecessarily delay the disciplinary proceedings at their employer’s cost, as this amounts to an abuse of process. Employers should amend their disciplinary code or policies and procedures to allow for the possibility of suspension without pay when their employees unduly delay the disciplinary proceedings.
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