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In Mogothle v Premier of the North West Province and Another (2009) 30 ILJ 605 (LC), the Labour Court held that, “ …precautionary suspension must be justified by clear allegations and a rational basis. Suspending an employee without ever having provided a Code of Conduct undermines both rationality and legality.” (Suspension without a Code of Conduct: A fragile exercise of employer power. Chris Abrahams, Acting Regional Magistrate. De Rebus April 2026)
Precautionary suspensions are just that, precautionary. Their key purpose is to avoid problems such as a repeat of the alleged offence or interference with evidence while the employer is investigating the allegation against an employee.
It is well known that the great majority of employers are small businesses and that many, if not most of them, do not have a formal code of conduct. However, it appears that the above cited Mogothle finding renders a precautionary suspension unlawful if the employer does not have a code of conduct.
While Schedule 8 of the LRA effectively requires employers to ensure that employees know the rules it does nor prescribe the need for a formal code of conduct. In view of this was the Labour Court’s above finding correct?I agree with the Court that precautionary suspensions must have a valid and rational basis. Were this principle to be ignored employers would be able to abuse such suspensions in order to victimise employees. However, prescribing that the employer must also have a code of conduct in order to legitimise precautionary suspensions is, with respect, arbitrary and irrational. There is no obligation on employers to have disciplinary codes, and employers are simply entitled to show that errant employees knew the rules that that broke or should have known them. I therefore believe, with respect, that the Court erred in this case.
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