Disciplinary suspension: precaution of punishment?

Introduction

In order to put suspension within proper context, one needs to understand the common law principles related to employment.

In its most basic form, the employee tenders his/her services to the employer, upon which the employer is obliged to remunerate the employee for the services rendered.

Obviously, there will be a contractual arrangement between employer and employee regarding the services to be rendered and the remuneration attached to it. The Basic Conditions of Employment Act (BCEA) requires these arrangements to be in writing (refer Section 29(1) of the BCEA).

The employee however has no common law right to be given work to do, but he/she has a right to be remunerated for as long as he/she tenders his/her services and

remains available to work, albeit that the services are not necessarily utilised by the employer.

There is one exception though where there is an entitlement to be given work to do and that is where the employee’s earnings are based on commission. Later more about this particular situation within context of suspension.

The above-mentioned exception set aside, the employer is at liberty to require an employee not to perform work, for as long as the employee is available to work and is remunerated as if work is performed. This liberty on the part of the employer is however not without certain requirements of equity and fairness.

Suspension, in its precautionary application within disciplinary context, is by definition where the employee’s duty to perform work is temporarily suspended pending an investigation into alleged misconduct potentially involving the employee. What is not suspended though, is the employee’s entitlement to remuneration, hence precautionary suspension is on full pay.

There are two types of suspension within disciplinary context, namely:

Precautionary or “holding” suspension.

This type of suspension is pending the finalisation of an investigation into alleged misconduct and possible subsequent disciplinary proceedings, as alluded to above; and

Punitive suspension.

This type of suspension is resorted to as a form of “punishment” or disciplinary sanction. Whereas precautionary suspension is with full pay, punitive suspension is without pay. Punitive suspension should be the rare exception to the rule; hence I will just briefly deal with this manifestation of suspension and devote the rest of this blog to precautionary suspension.

Punitive suspension will only be fair if it is resorted to as an alternative to dismissal, in a situation where there are valid grounds to dismiss, but where a more compassionate and lenient approach is adopted by line management for some or other reason.

Punitive suspension should also not be for an excessive period, going beyond the point where the employee is made to realise the wrongness of his/her conduct and change behaviour. Ideally, punitive suspension should be offered to the employee as an alternative to dismissal and if this offer is rejected, dismissal is proceeded with.

Obviously, one would not consider punitive suspension where the employee has been found guilty of a very serious offence such as fraud, theft, or sexual harassment.

Substantive fairness requirements for precautionary suspension

It has been expressed in relevant case law and echoed by at least one academic in the field of labour law, that suspension is the employment equivalent of arrest.

Although precautionary suspension does not judge the employee, who still remains innocent until proven guilty, the courts reiterated that suspension never-the-less has the potential to prejudice the employee (rightfully or wrongfully) in respect of reputation, advancement, job security and fulfilment. From this follows that the employer has to have a good reason to suspend and consequently temporarily deny the employee access to the workplace.

In the Supreme Court of Appeal case: Murray v Minister of Defence, two substantive fairness considerations for a justifiable suspension were laid down, namely:

• A justifiable reason to believe that the employee is likely to be involved in serious misconduct, based on preliminary findings of the investigation.
• An objective and justifiable reason to deny the employee access to the workplace, such as that the employee’s presence within the workplace may jeopardise the integrity or interests of the parties. The motive for suspension may include minimising workplace conflict involving the employee, managing the risk of further repercussions or a repetition of the alleged offence or to prevent anticipated interference with the investigation.

Procedural fairness requirements for precautionary suspension

• Consider the need for suspension as objectively as possible by applying your mind to the following:

• • To what extent could the presence of the employee in the workplace pose any threat to another person or persons?
  • What is the likelihood of the employee interfering with the investigation, while being present within the workplace pending the finalisation of the investigation?
  • Depending on the gravity of the offence being investigated implicating the employee, to what extent would an eventual guilty finding impact negatively on the trust relationship inferred by the employment contract?
  • What is the possibility of considering an arrangement short of suspension which could effectively mitigate or eradicate the anticipated adverse effects associated with the employee’s presence pending the finalisation of the investigation? For instance – Could the temporary revoking of a mandate, signing powers or decision-making powers vested in the employee render his/her presence in the workplace harmless?

• Adhere to the audi alteram partem-principle

The above-mentioned SCA case (amongst various other court cases) accentuated the importance of this principle, which is currently well-entrenched in relevant case law with reference to suspension.

The audi-principle obliges the employer to afford the employee an opportunity to state a case as to why he/she should not be suspended after the employee has been notified of the suspicion concerned and before a final decision is taken regarding the suspension.

(Note – Affording the employee this opportunity should however not be confused with his/her right to formally state a case in response to the allegations brought against him/her in a disciplinary proceedings to follow).

In practical terms, adherence to the audi-principle entails the following:

• • Provide the employee (preferably in writing) with the reasons for contemplating suspension.
  • Furnish as much relevant prima facie information derived from the preliminary investigation implicating the employee to enable the employee to reasonably respond.
  • Allow the employee adequate time to advance reasons as to why he/she should not be suspended, however only reasonably limited time (no more than an hour or two) needs to be allowed for the employee’s response, since the employee is not required to respond to a formal charge at this stage. Only an initial informed response is required from the employee regarding the latter’s viewpoint regarding the appropriateness of suspension.

• Execute the suspension administratively

Failing an acceptable explanation provided by the employee, implicated in the alleged misconduct, the suspension is administratively executed as follows:

• Furnish the employee with a suspension letter, specifying the following:
• • A brief description of the offence being investigated, implicating the employee.

• • Confirmation that the employee, after having been informed of the alleged offence, was afforded an opportunity to advance reasons as to why he/she should not be suspended. Mention here the date and time of this opportunity provided.

• • Indicate what the employee’s response to the contemplated suspension was and that the explanation offered by the employee (if any) was not considered sufficient to prevent suspension.

• Furnish particulars of the period of suspension, namely:

• • That it will be on full pay and on a precautionary basis. (Note – In case of an employee being remunerated on commission, payment for the duration of the suspension must be calculated in accordance with the guideline provided in Section 35 (4) of the Basic Conditions of Employmenr Act (BCEA)).

• • That it will take effect on (date) and will endure until the finalisation of the investigation and, in the event that formal disciplinary proceedings being proceeded with, until the finalisation of such disciplinary proceedings.

• • The intervals within which the employee will be updated regarding the progress with the investigation, where the suspension is likely to endure for longer than 5 working days

• • The prohibition to enter the workplace premises during suspension. Where access to the premises is required for purposes related to the subject matter of the suspension, specify under which circumstances and subject to which pre-arrangements the employee will be granted controlled access.

• • That it is a specific condition of the suspension that the employee is required to hold himself/herself readily available during normal office hours to be contacted telephonically or otherwise and/or to be required to attend a meeting with the investigator or any other managerial official on reasonably short notice.
  • A warning that any breach of the suspension conditions may be regarded as an offence and will be treated as such.
  • Confirmation that, being suspended on a precautionary basis, it should not be construed to imply that the employee is considered guilty of any offence.