Schoeman Law's Fadia Arnold: Many employers are not aware that there are two types of suspensions.
Suspension of employees is a common occurrence in the workplace. Accordingly, employers should be aware of the correct processes and procedures that must be followed when suspending an employee. In the same breath, employees must be aware of their rights in order to determine whether the suspension is fair or if they have recourse to refer an unfair labour practice to the CCMA or relevant bargaining council in terms of the Labour Relations Act 66 of 1995 ("the Act")
Punitive suspension versus precautionary suspension
Many employers, and employees, in particular, are not aware that there are two types of suspensions, namely precautionary suspension and punitive suspension. The fundamental differences between these two types of suspensions are colossal. There are three main differences between the two types of suspensions, namely; remuneration, the circumstances when precautionary and punitive suspension can be imposed, and the audi alterum partem rule as it pertains to the employee having the right to make representations on why he or she should not be suspended.
Remuneration and benefits
With regards to remuneration and benefits, in the circumstances where an employee is suspended on a precautionary basis, that employee has the right to be suspended with full pay and benefits. The converse applies in circumstances where an employee is suspended on a punitive basis. The latter means that the employee is suspended without full pay and benefits.
Circumstances in which precautionary suspension can be imposed
A precautionary suspension, also known as a preventative suspension, is imposed when an employer anticipates that the employee might have misconducted him or herself or breached a term or condition of his or her employment contract or has done something which may result in disciplinary action. Due to the employer not knowing the full details of the possible misconduct or breach and whether or not the employee is guilty and should be sanctioned, the employer may then suspend the employee on a precautionary basis with full pay and benefits pending an internal investigation by the employer. Due to an investigation needing to be conducted, the precautionary suspension is imposed in order for the employer to conduct the investigation while ensuring that the employee does not interfere with the investigation.
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The employee is not being disciplined if the employee is suspended on a precautionary basis. Rather they are simply removed from the workplace as an interim measure to prevent possible interferences in internal investigations and hence the employee by law must receive his or her full pay while being on suspension. Accordingly, the employer must clarify with the employee whether the suspension is precautionary or punitive in order for the employee to be aware that he or she is not being punished and that there is no prejudice to the employee in respect of remuneration.
Circumstances in which punitive suspension can be imposed
A punitive suspension, on the contrary, means just that, the suspension is punitive. That means it is a punishment and a sanction imposed on the employee who has already been found guilty of misconduct or breach of a term or condition of his or her employment subsequent to a disciplinary hearing. In the circumstances of a punitive suspension, the internal investigation surrounding the misconduct or breach of terms of the employment agreement or any other conduct by the employee which has prejudiced the employer or put the employer at risk has already been completed.
Following the investigation, the employer must hold a disciplinary hearing and the employee must have the right to defend the charges levelled against him or her and further have the right to present evidence to show he or she is not guilty of the charges if he or she so alleges. Accordingly, the employee exercises his or her right in respect to the audi alterum partum rule. If the employee is found guilty, then the punitive suspension is a sanction which can be imposed on the employee as an alternative for dismissal.
Has the damage already been done?
In spite of the legal differences between the precautionary and punitive suspensions, one might still beg the question of whether the proverbial damage has already been done in the circumstances where an employee is suspended on a precautionary basis. Despite the lack of monetary prejudice - and in the case where the suspension has been lifted after internal investigations have been completed and the employee is no longer under investigation - it is a common occurrence that the workplace is rife with gossip and the employee's reputation has been damaged just by the mere suspicion of misconduct, and subsequent precautionary suspension.
In the light of the above, it is imperative that employers ensure that prior to suspending employees on a precautionary basis that the employer has serious reasons to believe that employee has misconducted him or herself and further that there are justifiable reasons as to why the employer believes the employee must be removed from the workplace pending an internal investigation.
In the circumstances of precautionary suspension, the employer does not need to provide the employee with an opportunity to make representations as to why the employee should not be suspended (execution of the audi alterum partem rule). This is based on the judgment handed down in the Constitutional Court in Long v South African Breweries (Pty) and Ltd and Others [2018] ZACC 7 where it was considered reasonable that, at the very least, the employer makes a concerted effort to clear the employee's reputation in an open forum with meaningful dialogue in the workplace with the intention of creating an honourable and dignified workplace culture.
In conclusion, employers must clarify to the suspended employee whether he or she is being suspended on a precautionary basis or punitive basis to avoid any confusion and any unnecessary unfair labour practice referrals and costly litigation. Employers should also ensure that where they do suspend an employee on a precautionary basis that they do so on full pay and with delicacy prior and subsequent to suspension to ensure the employee suffers little to no prejudice as a result of a precautionary suspension.
