When an employer is faced with an employee suspected of misconduct, the question often arises whether the employee should be suspended from duty, pending the outcome of the investigation and, if so, how such a suspension should take place.
There are two (2) main types of suspension from duty, applied in South Africa:
Type 1: Precautionary Suspension which takes place prior to a disciplinary enquiry and is always on the basis of full pay and benefits; and
Type 2: Punitive Suspension which takes place in certain industries (such as the safety and security industry), subject to the provisions of a disciplinary code and procedure, after the completion of a disciplinary enquiry where an employee was found guilty of serious misconduct. Punitive suspensions are usually a form of severe ‘punishment’ and, as such, the employee would not be paid for a period determined by a chairperson in the enquiry, depending on the merits of the specific case (for instance one or 2 weeks, up to a month of unpaid suspension).
Most employers face challenges relating to the first type of suspension – the precautionary suspension – and we provide guidelines herein on the reasons to proceed with a precautionary suspension and how to effect a legally fair and compliant precautionary suspension from duty.
Generally, there are four (4) main reasons why an employer would suspend an employee who is suspected of misconduct:
- Seriousness of the Offence: if the alleged offence is of such a serious nature that, if found guilty, the employee is likely to face dismissal after a disciplinary enquiry, it is advisable to effect a precautionary suspension, especially if the employer wishes to argue that the trust relationship has been damaged beyond repair (for instance, in cases of theft, fraud, dishonesty, assault and intentional damage to property);
- Likelihood of a Repeat Offence and/or Further Damage to the Employer’s Business: in these instances, the employer argues that it is best to remove the employee from the workplace so as to avoid the employee repeating the alleged offence. For example, if the employee is suspected of having made a serious error (which may or may not have cost the employer financially), it is argued that it’s best to remove the employee from the workplace until such time as the disciplinary enquiry has been concluded;
- Potential Interference in an Ongoing Investigation: employers may embark on precautionary suspensions in instances where they suspect that the employee suspected or accused of misconduct, may interfere with an ongoing investigation by perhaps intimidating witnesses or tampering with evidence; and
- Safety Reasons: in certain volatile workplaces, the safety of accused employees or others, cannot be guaranteed and it is often best to remove employees from the workplace temporarily, if the employer cannot comply with their common law obligations to provide a safe working environment for the employee(s) in question.
Unfortunately, precautionary suspensions have somewhat of a bad reputation in employee relations circles, mainly because some argue that a suspension from duty is indicative of a predetermined outcome of the disciplinary enquiry.
This is absolutely not the case and an employer has the right to place an employee on precautionary suspension, on full pay and benefits in any one or more of the instances referred to above.
In terms of effecting a fair and legally compliant suspension from duty, there are two (2) important factors to comply with:
- The employer has to clarify the reason for the proposed suspension (as per one or more of the 4 reasons stated above) and/or make the employee aware of the potential allegations against them. It is not always possible to state the exact allegations at the point of proposed suspension, especially if it is a legally complex matter and the investigation is ongoing. The employer should always endeavour to be transparent in this regard and at least give the employee a fair opportunity to respond to the proposed suspension; and
- The employee should be permitted an opportunity to argue for reasons why they should not be suspended from duty on full pay and benefits.
In the end, the employer has the burden of considering the reasons for the proposed suspension and the employee’s representations and the employer has to make the final determination on whether or not to proceed with the proposed suspension.
If the employer does determine that a precautionary paid suspension is required, the employee should be suspended in writing and should be made aware of the terms of the suspension (such as refraining from contact with colleagues, requesting access to the workplace, remaining contactable and returning company property such as access cards and laptops).
As far as is reasonably possible, it is best to inform the employee of the allegations against them at the point of suspension or within a maximum of two (2) weeks thereafter. Employees may refer an unfair labour practice dispute to the CCMA, arguing that they have been unfairly suspended, especially if you did not follow the process prescribed herein, or if you maintained the paid suspension for an unreasonably long period of time, without bringing allegations of misconduct against the employee.
If you are contemplating suspending an employee from duty as a precautionary measure, we suggest you seek professional guidance.