Suspending employees lawfully

Placing an employee on suspension

If you plan on suspending employees, make sure you do so lawfully. This includes having good cause, and following a proper procedure. Because there’s no guarantee that a suspended employee will skulk off quietly, tail between their legs, to mope around at home while you complete your investigations and dig up the dirt on them. Your suspended employee would in all likelihood be using their time a little more productively. Like scuttling off to the Labour Court and returning with some well-trained legal artillery.

In Tsietsi v City of Matlosana Local Municipality a manager was placed on suspension pending the outcome of an investigation into allegations of financial misconduct against him. In this case:

  • The employer gave the employee written notice of his suspension:
  • The employer gave the employee a list of the allegations against him; and
  • The employee was invited to submit written representation showing why he should not be suspended.

The employee took issue with his suspension and decided to challenge it in the Labour Court. He felt that the suspension was unfair, arguing that a fair process had not been followed, and also claiming that the allegations of misconduct against him were vague. He claimed that:

  • His failure to submit written representation showing why he shouldn’t be suspended was because he didn’t have all the requisite information. He claimed that he needed additional specifics from the employer; and
  • The suspension did not comply with municipal regulations. The municipal regulations required that for an employee to be placed on suspension, the employer must have a reasonable belief that the employee may jeopardise the investigation into the misconduct allegations.

Here is the important part. So if you’re planning on suspending employees, take heed of the following.

The court in this matter held that:

  • The allegations of misconduct do not need to be set out in detail;
  • Suspension is a precautionary measure. It is not punitive in nature;
  • The purpose of suspension is to allow the employer to carry out an investigation and in the process protect the employer from suffering any further damages. It is only after the investigation has been completed that the employer would be able to provide the employee with more detail on any allegations of misconduct;
  • If the employer acceded to the employee’s request for further information, it could jeopardise the employer’s investigations;
  • In this particular case (pertaining to municipal regulations) it is not necessary for the employer to provide any evidence to support the assertion that the employee may interfere with the investigation.

The suspension was therefore considered lawful, and the employee’s challenge against his suspension failed.

It’s clear that suspending employees require a little more than selling your employees to stay at home until they’re called back. This case serves as a reminder that when an employer has proper employment policies in place, and follows correct and lawful procedures when dealing with its staff, including procedures for placing staff on suspension, then the employer has little to fear should the employee launch a legal challenge.

So… do you have your employment procedures and documents in place?

 

Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.

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