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
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
"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
So was Mr Cliff's
suspension unfair such that it constituted an unfair labour
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
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.
To assist employers further, here are our five golden rules about
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
provided on this page was written by
Work-in-Solutions & Equity. For more information
please contact Dee Cranswick (firstname.lastname@example.org
formal grievance procedure