3 June 2009

Suspensions and the right to be heard

Employers suspend employees from duty either as a form of quarantine (pending an investigation and/or disciplinary enquiry) or as a form of disciplinary sanction. The Labour Court (the Court) recently had to consider whether employers may unilaterally suspend an employee without a pre-suspension hearing.

Under the common law which applied before the promulgation of the Labour Relations Act, 1995, no measure of procedural fairness prior to suspension was required. An employer was entitled to suspend an employee with pay, and this would not constitute a breach of the employment contract. However, drawing on principles of administrative law, the Courts have held that public sector employees have a right to be heard prior to being suspended. Whilst it is accepted that all employees have the right to be heard before a punitive (disciplinary) suspension, the Courts have not yet recognised a similar right for private sector employees to be heard before quarantine suspensions are implemented.

Recently, the Court held in SAPO Ltd v Jansen Van Vuuren NO [2008] 8 BLLR 798 (LC) that a suspension should be both substantively fair and imposed after following a fair procedure.

The Court stated:

"There is, however, 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."

The phrase "opportunity to be heard" used by the Court may indicate that a formal hearing is not necessarily required. Thus, where an employer wishes to provide the employee with an opportunity to be heard prior to suspension, the employee must simply be informed that the employer proposes to suspend him and given an opportunity to respond.

Currently, only employers in the public sector are obliged to follow a fair procedure prior to suspending an employee pending the outcome of a disciplinary enquiry. An employer in the private sector need not afford an employee the opportunity to be heard prior to a quarantine suspension, but in our view the Courts may be willing to impose such a duty in time. Of course, nothing prevents a private sector employer from affording an employee this right if the employer wishes to do so. It goes without saying that regardless of whether a right to be heard is granted, the employer's reasons for the suspension are open to scrutiny.

Danie Pretorius
Director, Employment

Melanie Hart
Director, Employment

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