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. Go to: www.labourlawvideos.co.za
Employees may be suspended from duty for various reasons that may include:
- The employer may want to make the employee’s working circumstances so uncomfortable that he/she resigns. This motive is both illegitimate and legally dangerous.
- The employer may need to investigate serious allegations made against the employee. Where the employee is in a position of official or unofficial power the precautionary suspension may be necessary in order to ensure that her/his presence at the workplace will not interfere with the investigation. This is a legitimate reason for suspension but the employee must be on full pay during the suspension period.
- The employer may have a need to avert the danger of the employee repeating the alleged offence while the investigation is underway. For example, if the employee is being investigated for allegedly assaulting a colleague, a precautionary suspension may be merited to avert the possibility of a repeat assault. Again, the employee must be on full pay during the suspension period and the danger in question must be real.
- Punishment of the employee by the employer after he/she has been found guilty of a serious offence. Here, the employee is normally suspended without pay.
Where the purpose of a suspension is precautionary the law does not allow the employer to use it to punish the employee. This because, at this early stage, the employee has not been proven guilty of any offence. The suspension may only be used to avert a danger while the employer prepares for the disciplinary hearing.
In the matter between Thembani Banda vs Department of Planning, Monitoring and Evaluation (Lex Info 15 April 2026. Labour Appeal Court case no: A2025-092122) the employer placed Ms Banda on a precautionary suspension for 8 months.
The bargaining council arbitrator ordered the employer to uplift the suspension due to its unreasonably long duration. However, the arbitrator declined to award Ms Banda compensation, and the Labour Court upheld this decision. The Labour Appeal Court disagreed. It had been common cause that the protracted suspension had caused the employee and her family emotional distress and had necessitated that she be treated by a psychologist and via medication. Her claim that she had not been told what she was being accused of also appears not to have been disputed.
The Court therefore awarded Ms Banda compensation and ordered the employer to pay her costs.
While there may have been a good reason for the precautionary suspension the case report is silent on this. Although it is not known whether the suffering caused to Ms Banda was intended by the employer, she did suffer due to the protracted suspension, and the employer was penalised for this because precautionary suspensions may not be punitive.
This finding is an important message to employers to ensure that they understand the legal limits of the use of precautionary suspensions.
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