Representations no longer required before precautionary suspension

On February 19, 2019, the Constitutional Court upheld the Labour Court’s finding that an employer need not afford an employee an opportunity to be heard before implementing a precautionary suspension. This important development arose from the following facts.

The employer, the South African Breweries (Pty) Ltd (SAB) employed a district manager for the Border region. The employee was responsible for the operations in that region, which included ensuring that SAB’s fleet of vehicles, met all legal requirements. In December 2012, SAB came to know of fraudulent activities in respect of the licensing of its vehicles, and that certain vehicles were being operated without licences and the requisite maintenance. In response, the employee instructed SAB’s fleet and depot managers to rectify the irregularities. It would appear, however, that this was not attended to because on 10 May 2013, one of SAB’s trailers, which was unlicensed and “in a state of disrepair” was involved in a collision which resulted in a fatality. As a result, on May 15, 2013, SAB informed the district manager that he was suspended, on full pay, pending an investigation into allegations of dereliction of duty and gross negligence. The suspension was precautionary not punitive.

Ultimately, SAB convened a disciplinary hearing. The employee was found guilty of various charges, including dereliction of duties, gross negligence and bringing the employer’s name into disrepute. He was found guilty of those charges and dismissed. He referred an unfair labour practice dispute to the CCMA pertaining to his suspension, and an unfair dismissal dispute to the CCMA. In respect of the unfair suspension dispute, the CCMA found that while there was a fair reason to suspend the employee, SAB had committed an unfair labour practice by failing to give him an opportunity to make representations as to why he should not be suspended. The unfair dismissal dispute culminated in a finding that the dismissal was substantively unfair but procedurally fair. SAB was ordered to reinstate the employee with retrospective effect. SAB applied to the Labour Court to review and set aside both arbitration awards.

Both review applications were successful. The Labour Court substituted the unfair dismissal award with an award that the dismissal was substantively fair. In respect of the unfair suspension award, the Court held

• There is no requirement that an employee be given an opportunity to make representations before an employer institutes a precautionary suspension.
• The precautionary suspension must be linked to a pending investigation and serve to protect the integrity of that investigation.
• The prejudice to the employee is ameliorated by the employee being paid while suspended.

The Constitutional Court, in considering whether to grant leave to appeal considered the issue of a pre-suspension hearing. It found that the Labour Court’s findings could not be faulted. The Constitutional Court accepted that a precautionary suspension does not constitute disciplinary action, and as such the requirements for fair disciplinary action are not applicable, i.e. there is no right to be heard before a precautionary suspension is implemented.

Further, the Constitutional Court found that it was correct that in determining whether or not a precautionary suspension was permissible, the decision-maker must first determine whether there is a fair reason for suspension. If the reason for suspension is an investigation, it cannot be said to be unfair. The next consideration is whether there is any prejudice to the employee. Prejudice to the employee is cured by full pay for the duration of the suspension.

Therefore an employer, who wishes to suspend an employee pending an investigation into allegations against the employee, need not give the employee an opportunity to make submissions as to why he or she should not be suspended. If the suspension is a precautionary measure, and not a disciplinary action, full pay will usually address any prejudice to the employee. The employer must still be able to show that there is reason to remove the employee from the workplace during the investigation, e.g. that there is a reasonable apprehension that the employee’s presence or conduct may hinder the investigation in some way. The judgment is a welcome development in employment law, which may be seen to be overly laden with purely procedural requirements.