BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za.
Employees frequently contact me complaining that they have been fired. However, it often transpires that the employee has only been suspended. Likewise, employers often suspend employees and then receive a copy of a referral to CCMA of a dismissal dispute.
However, from a practical and legal point of view suspension of an employee is very different from a dismissal. While they do have in common that, in both cases, the employee stops working, a suspension is merely a temporary halt of an employee’s provision of services and, unlike a dismissal, does not terminate his/her employment.
Employers who are aware of the heavy penalty for unfair dismissals often vent their anger on destructive employees by suspending them instead of firing them. However, section 186(2) of the Labour Relations Act classifies unwarranted suspensions as unfair labour practices.
In the case of Mogothle vs Premier of the Northwest Province & another (2009, 4 BLLR 331) a deputy director general of agriculture, conservation and development was suspended after the publication of a media article alleging his involvement in corruption. He accepted the first month of suspension, but not the employer’s decision to extend the suspension indefinitely until the conclusion of the investigation. The employee therefore launched an urgent application to the Labour Court which found that:
- Employees have the right to refer contractual disputes to the Labour Court in terms of section 77(3) of the basic Conditions of Employment Act (BCEA)
- Suspension of an employee prior to a hearing should only be used when there is reasonable cause to show that the employee will interfere with investigations or pose some other threat.
- The employer must give the employee an opportunity, before suspending him, to make representations against the suspension.
- There was no indication that the employee’s presence at the workplace would jeopardise the investigation
- Suspension can have serious personal and social consequences on the employee
- The matter was urgent and the suspension was a breach of the employee’s contractual rights
The Court therefore required the employer to uplift the suspension.
This finding makes it clear that employers considering suspension need first to ensure that they are able to justify the suspension decision and to follow proper pre-suspension procedures.
While employers need to take care in justifying suspensions, employees should not expect substantial compensation where they were at fault.
In view of the outcome of the case discussed above employers are advised to train their managers to understand that the law gives employees a right to their jobs and that this right can only be interfered with if the employer has a legally valid reason .
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve labour law knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
