Can employers suspend employees under investigation without consulting with them first?
The impact of Long v South African Breweries (Pty) Ltd and Others on Labour Law procedure
Precautionary suspension: an unfair labour practice?
Section
186(2)(b) of the Labour Relations Act 66 of 1995 (“LRA”) defines an unfair
labour practice as “an unfair act or
omission that arises between an employer and an employee involving the unfair
suspension
of an employee…”
A distinction has historically been drawn between punitive and precautionary
suspension. The former refers to a suspension imposed as a disciplinary
penalty. The latter refers to a suspension that is imposed pending an
investigation of the employee before his or her disciplinary hearing. Despite this
distinction, a “precautionary suspension” was nevertheless viewed as
disciplinary in nature.
As such, suspension pending disciplinary action also had procedural requirements that employers had to adhere to. In a fairly recent 2010 judgment, the Labour Court ruled that employers who suspended an employee pending a disciplinary hearing are required to give the employee the opportunity to make representations before being suspended for “precautionary reasons”. If they failed to do so, they were committing an unfair labour practice. The fact that this suspension was on full pay did not alter this position (Dince and others v Department of Education, North Western Province & others).
Game-changing case
However, inLong v South African Breweries (Pty) Ltd and Others; Long v South African Breweries (Pty) Ltd and Others 19 February 2019, the Constitutional Court changed the position with regards to certain procedural requirements of precautionary suspension.
The facts, in this case, were as follows. Mr. Allan Long, hereinafter “the applicant”, was previously employed by the South African Breweries (Pty) Limited (“SA Breweries”) as its district manager for the Border District. Among his responsibilities were to ensure that SA Breweries complied with all legal requirements in respect of its operations in the Border District. These included compliance with the requirements in respect of a fleet of vehicles. Between December 2012 and May 2013 a series of incidents occurred which prompted SA Breweries to investigate the applicant for misconduct. These included various irregularities in respect of the vehicle fleet, discrepancies in the fleet records, vehicles and trailers which were unlicensed or not roadworthy and finally, a company trailer which was involved in a fatal accident. The aforementioned vehicle was found to be in a state of disrepair and unlicensed. SA Breweries, therefore, informed the applicant of his suspension pending investigation. Although this suspension took three months, Long was remunerated for this entire period. Following his disciplinary hearing, he was, found guilty in respect of dereliction of duties, gross negligence and bringing the company name into disrepute. He was dismissed in October 2013.
Referral to the CCMA
The applicant subsequently referred his suspension on 21 May 2013, pending disciplinary proceedings to arbitration at the CCMA. The arbitrator concluded that there was a valid reason to suspend the applicant, but that the applicant had not been given an opportunity to make representationsto show why he should not be suspended. This he found to be an unfair labour practice. The arbitrator further held that the suspension was unreasonably long and had become punitive and unfair. As a result, Long was awarded compensation equivalent to two months’ remuneration.
Review of the Labour Court
SA Breweries subsequently took the suspension compensation on review to the Labour Court in Labour Court South African Breweries (Pty) Ltd v Long; South African Breweries (Pty) Ltd v Sonamzi NO.
The Labour Court held that where a suspension is precautionary, there is no requirement that an employee be given an opportunity to make representations. Instead, the suspension must be linked to a pending investigation and serve to protect the integrity of that ongoing process. Although the prejudice to the employee must be considered, the Judge found that this could be countered by a salary being paid during the period of suspension.
The Labour Court held that the arbitrator’s conclusions were materially irregular and that any prejudice to the applicant was mitigated by the fact that he was fully paid while on suspension. As a result, the Labour Court held that the suspension was not an unfair labour practice and that the arbitrator’s decision was unreasonable.
Closure at the Constitutional Court
The abovementioned case was then referred to the Constitutional Court. This Court reviewed the definition of 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. The Constitutional Court found that, in respect of the merits, the Labour Court’s finding that an employer is not required to give an employee an opportunity to make representations prior to a precautionary suspension, could not be faulted. It agreed that the suspension imposed on the applicant was a precautionary measure, not a disciplinary one.
Conclusion
The crux of this Constitutional Court ruling is, therefore, that it is now acceptable for employers to suspend employees on a precautionary basis without granting them the opportunity to make pre-suspension representations. This will be permissible as long as it does not materially prejudice the employee. In determining whether the precautionary suspension is permissible, the Labour Court ruled that the suspension should be fair. The fairness of the suspension is determined by assessing first, whether there is a fair reason for suspension and secondly, whether it prejudices the employee. This case indicates that a Constitutionally accepted “fair reason for a precautionary suspension” of an employee can be that he/she is under investigation. Employers are however also advised to give pay these employees’ full remuneration during this suspension to comply with the Court’s requirements.