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SUSPENSION FROM WORK  

The practice of suspending an employee's employment is once again in the public arena following the suspension of radio presenter Gareth Cliff. Mr Cliff was suspended from broadcasting for two days after a complaint that he had insensitively re-broadcast a news clip about the looting of a Bangladeshi's watermelon shop in the Free State. Media reports are that Mr Cliff is seeking legal advice. Despite the absence of any instructions, here's our brief advice to Gareth Cliff.

Type of Suspension?

It is generally accepted that there are two types of employment suspensions. The first is termed a 'preventative suspension' and refers to the practice of suspending (or removing) an employee from the workplace to ensure that he or she does not interfere with the investigation of disciplinary charges (that is, prior to the disciplinary hearing).

The other type of suspension is termed a 'punitive suspension' and refers to the practice of suspending an employee as a disciplinary action (that is, as a sanction after the disciplinary hearing).

The most fundamental difference between the two types is that preventative suspensions ought to be paid leave whilst punitive suspensions, as the name suggests, are unpaid leave.

The issue for Mr Cliff is what type of suspension he was put on and whether that suspension was in breach of the law.

We have no details as to whether Mr Cliff was paid or not during the suspension period. But in the absence of those details, we do know that there has been no indication (at least in the media) that Mr Cliff will be subject to a disciplinary hearing in relation to the re-broadcast of the watermelon clip. From his employer's point of view, it appears that the matter is at an end. If this is the case, pending the details about pay, his suspension was for punitive rather than preventative reasons.

Breach of the Law?

The law regulates suspensions by means of the unfair labour practice provisions. Section 186(2) of the Labour Relations Act (LRA) says the following:

"Unfair labour practice means any unfair act or omission that arises between an employer and an employee  involving...(b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee".

So was Mr Cliff's suspension unfair such that it constituted an unfair labour practice?

There have been a number of decisions from the Courts to the effect that punitive suspensions can be lawful if they are imposed as an alternative to dismissal [see the Labour Court's decision of SA Breweries Ltd v Woolfrey (1999) 8 LC 10.7.1].

To put it another way, the Courts are saying that punitive suspensions are allowable if, after a disciplinary hearing, dismissal would have been appropriate under the circumstances but mitigating factors warrant something less than dismissal, namely an unpaid suspension (that does not continue for an unreasonable period).

In the absence of any disciplinary hearing, Mr Cliff's employer may have difficulties in persuading a Court that it was fair to suspend him, particularly if it was an unpaid suspension. It may well constitute an unfair labour practice and be in breach of section 186(2)(b) of the LRA.

Putting aside the legislation for one minute, there may be another basis for Gareth to claim the suspension was unlawful. The common law position is that an unpaid suspension amounts to a breach of the employment contract by the employer unless the employee consented to such action. If Mr Cliff has not executed an employment agreement consenting to the suspension, he may also have an action under common law and be entitled to damages.

In the absence of instructions, is it difficult to form an accurate view on the legality of Mr Cliff's suspension, but the points discussed above indicate the issues that employers must consider.

Golden Rules

To assist employers further, here are our five golden rules about suspending employees:

1. If the suspension is a preventative suspension, you must pay the employee throughout the suspended period.

2. To ensure the process is not unfair, you ought to consult with employees prior to a preventative suspension to give them an opportunity to respond to the decision to suspend.

3. If the suspension is a punitive suspension, it should only be adopted following a formal disciplinary action in which dismissal was a reasonable and appropriate sanction.

4. Ensure that the suspension period is reasonable; a number of Court decisions have dealt with suspensions that last two years or more, which are likely to be held to be unfair.

5. Include suspension clauses in your employment agreements to ensure that a suspension does not amount to a common law breach of contract.
 

Information provided on this page was written by Work-in-Solutions & Equity.  For more information please contact Dee Cranswick (dee@workinsolutions.co.za ) .

 

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