Is a pre-suspension hearing necessary prior to suspending an employee?

Is a pre-suspension hearing necessary prior to suspending an employee?

Is a pre-suspension hearing necessary prior to suspending an employee?

For a long time, the CCMA and Labour Court had a highly conflicting and/or inconsistent understanding of the procedures that need to be adopted and the manner in which they are applied to ensure that an employee’s suspension pending the conclusion of either an investigation or a disciplinary hearing is fair.

This view was derived from the often-narrow interpretation of section 23 of the Constitution and section 186(2) of the Labour Relations Act (LRA) which read as follows:

  • Section 23 of the Constitution: Everyone has the right to fair labour practices.
  • Section 186(2)(b) of the LRA: Any unfair act or omission that arises between an employer and employee involving–
  1. b) the unfair suspension of an employee or any other unfair disciplinary action short of a dismissal in respect of an employee.

The Constitutional Court (CC) in the case of Allan Long v South African Breweries (PTY) Ltd and Others (CCT61/18) has now finally and conclusively ruled on the issue, namely that an employer in the private sector does not have to hold a pre-suspension hearing unless its internal disciplinary procedures afford the employee such a right. The CC relied heavily on the initial Labour Court judgement in this matter to arrive at its decision.

The CC held that this case related to fair labour practices in terms of section 23 of the Constitution and specifically whether there is a requirement for a pre-suspension hearing in the case of a precautionary suspension. 

In respect of the merits of the matter, the CC’s ruling on reviewing the initial finding of the Labour Court, namely that an employer is not required to give an employee an opportunity to make representations prior to a precautionary suspension, cannot be faulted.  As the Labour Court correctly stated, the suspension imposed on the applicant was a precautionary measure, not a disciplinary one.   Consequently, the requirements relating to fair disciplinary action under the LRA cannot find application.   Where the suspension is precautionary and not punitive, there is no requirement to afford the employee an opportunity to make representations.

In determining whether the precautionary suspension was permissible, the Labour Court reasoned that the fairness of the suspension is determined by assessing–

  • a) firstly, whether there is a fair reason for suspension; and
  • b) secondly, whether it prejudices the employee.

In conclusion

The finding that the suspension was for a fair reason, namely for an investigation to take place, cannot be faulted. Generally, where the suspension is on full pay, cognizable prejudice will be ameliorated.  The Labour Court’s finding that the suspension was precautionary and did not materially prejudice the applicant, even if there was no opportunity for pre-suspension representations, is sound.

We at SERR Synergy guide employers in all facets of how to deal with alleged acts of misconduct in a procedurally and substantively fair manner. We provide employers with a full spectrum of their rights, obligations and associated risks when faced with a serious act of misconduct that requires decisive but also legally permissible steps. Our advice is founded primarily on the latest case law and CCMA awards which enable us to have an astute understanding of how to deal with the most complex cases.

About the Author: Jared Francis joined SERR Synergy in October 2016, and currently holds the title of KZN Labour Manager. He is an admitted attorney who has practised in KZN and Gauteng. He holds an LLB degree, a Post-Graduate Diploma in Industrial Relations and a Post-Graduate Certificate in Forensic Investigation from the University of KwaZulu-Natal. He also holds Post-Graduate Certificates in Advanced Labour Law, Corporate Law, Advanced Human Resource Management and Health and Safety from UNISA and has more than 10 years’ experience in the legal and industrial relations fields respectively.

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