Recent case law from the Constitutional Court of South Africa has eased the administrative burden for employers that wish to suspend an employee pending an investigation into allegations of misconduct or the holding of a disciplinary enquiry against the employee.
In order to guarantee an employee’s entitlements to fair labor practice and the principle of audi alteram partem (Latin for “let the other side be heard”), employers were previously required to give employees an opportunity to provide information on a controversy before implementing a decision to suspend an employee. As such, prior to issuing any employee with a letter or notice of suspension, the employer was required to afford the employee an opportunity to make representations with regard to the need for the suspension, and then fairly consider these representations before making a decision. The suspended employee could then challenge the employer’s decision as an unfair labor practice.
However, in a recent case before the Constitutional Court, Long v South African Breweries (Pty) Ltd and Others , reported in the second quarter of 2019, the court ruled that an employer does not need to go through the pre-suspension consideration process. Instead, provided that the suspension is “precautionary,” the employer can simply notify the employee that he or she has been suspended, with immediate effect. “Precautionary,” as commented on by the Constitutional Court, means that there is no prejudice to the employee in that his or her usual salary and benefits must continue to be paid during the period of suspension and that there is a reason for the suspension. With regard to a reason, the Constitutional Court was prepared to accept that a fair reason exists when an investigation is pending. As such, an employer is required only to conduct a proper investigation and continue to pay the employee during the suspension.
The right of an employer to suspend an employee without first having to hold a suspension hearing has been confirmed by the Constitutional Court. Although a suspended employee may still seek to challenge a suspension by claiming an unfair labor practice, the grounds for finding that a suspension is unfair, if the suspension is precautionary, would likely be restricted only to circumstances in which the length of the suspension is unreasonable.
This case bucks a trend in many other countries, where courts have been curtailing employers’ ability to suspend employees due to the reputational damage a suspension may cause.
Written by Bradley Workman-Davies of Werksmans Attorneys and Roger James of Ogletree Deakins
© 2019 Werksmans Attorneys and Ogletree, Deakins, Nash, Smoak & Stewart, P.C.