WHEN CAN I CHALLENGE MY SUSPENSION?
Short answer, in circumstances where the employee was suspended for no fair reason, clear absence of fair procedure followed, and when the principles of natural justice cannot be observed.
In terms of Section 185 of the LRA, each employee has a clear right not to be subjected to unfair labour practices.
The legislator has defined unfair labour practices in Section 186(2) of the LRA, which inter alia states that an unfair labour practice means any unfair act or omission that arises between an employer and an employee involving the unfair suspension of an employee ……”(Own emphasis added)
Remember an employee must be suspended in terms of the employer’s applicable disciplinary code and policy. If there is no disciplinary code and policy, the below principles will be applicable in all matters of suspension.
In the matter of SAPO Ltd v Jansen van Vuuren NO, it was held that a suspension must be based on substantive reasons and a fair procedure needs to be followed. It was held that there was a need to send a message to employers that they should refrain from hastily resorting to suspending employees when there are no valid reasons to do so. Suspensions have a detrimental impact on the affected employee and may prejudice his or her reputation, advancement, job security and fulfilment. It is therefore necessary that suspensions are based on substantive reasons and fair procedures are followed prior to suspending an employee. In other words, unless circumstances dictate otherwise, the employer should offer an employee an opportunity to be heard before placing him or her on suspension.
In a unanimous Labour Appeal Court judgment, acting Justice of Appeal Murphy J, allowed an appeal in the matter of MEC for Education, NWP v Gradwell. Mr Gradwell, the acting Head of the Department of Education of the North West Provincial Government, was suspended on full pay. The Labour Court granted a final order declaring his suspension unlawful. There was no good reason to suspend and he had not been allowed to exercise a ‘right to be heard’ before his suspension.
The LAC held that a suspension will only be justified if:
(1) The decision to suspension was based on the evidence of a prima facie case against the employee. Only then can the requirement of a lawful suspension be considered; (2) The employer had set out a substantial and compelling case of serious misconduct and the possibility of interference with evidence;
(3) The employee had been given an opportunity to make representations as to why he should not be suspended.
From the above, employees should be afforded a right to be heard before being suspended pending disciplinary action.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Written by Jaques Bloem
26 February 2018.