Employment law update – Audi alteram partem vis-à-vis precautionary suspension

May 1st, 2019
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Long v South African Breweries (Pty) Ltd and Others; Long v South African Breweries (Pty) Ltd and Others (CC) (unreported case no CCT61/18, 19-1-2019) (Theron J with Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J and Petse AJ concurring).

Does an employee have an inherent right to be heard on why they should not be suspended, pending an employer’s decision to place the employee on precautionary suspension?

This was one of three questions before the Constitutional Court (CC) in a leave to appeal application. The other issues related to the fairness of the appellant’s dismissal, as well as the cost order granted by the Labour Court (LC) against the appellant. However, for purposes of this article the only topic under review herein relates to the question posed above.

Background

The appellant was employed by South African Breweries (SAB) as a district manager and part of his duties included overseeing all legal requirements in respect of SAB’s fleet of vehicles were met.

On 21 May 2013 the appellant was placed on precautionary suspension pending the outcome of an investigation into a fatal accident involving one of SAB’s vehicles. The vehicle was said to be in a ‘state of disrepair and unlicensed’. SAB’s reasons for the suspension was to ensure its investigation was unhindered.

The appellant referred an unfair labour practice dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), whereafter arbitration came before the third respondent commissioner. The commissioner found that while SAB had a valid reason to suspend the appellant, its actions were nevertheless unfair in that it failed to provide the appellant with an opportunity to be heard on why he should not be suspended before placing him on suspension. The commissioner in addition found the suspension was unreasonably long and had become punitive in nature and awarded the appellant two month’s compensation.

In setting aside the award on review, the LC found that there was no requirement in law that an employee be afforded an opportunity to be heard before being placed on precautionary suspension. All that is required, according to the LC, was that there is an ongoing investigation and that the suspension seeks to protect the integrity of such a process.

Furthermore, the LC found that the commissioner did not properly appreciate the nature of the investigations and that the three-month period of suspension was not unreasonable or punitive under the circumstances. Finding the commissioner’s decision unreasonable, the court set aside the award.

The appellant’s application for leave to appeal was denied so to was its petition to the Labour Appeal Court.

Approaching the CC, the appellant maintained he had a right to be heard before being suspended and that the LC, in making a contrary finding, went against existing case law.

In its judgment refusing leave to appeal on this specific point the CC, referring to the decisions in South African Municipal Workers’ Union obo Dlamini and Others v Mogale City Local Municipality and Another [2014] 12 BLLR 1236 (LC), Mashego v Mpumalanga Provincial Legislature and Others (2015) 36 ILJ 458 (LC) and Member of the Executive Council for Education, North West Provincial Government v Gradwell (2012) 33 ILJ 2033 (LAC), held:

‘In respect of the merits, the Labour Court’s finding that an employer is not required to give an employee an opportunity to make representations prior to a precautionary suspension, cannot be faulted. As the Labour Court correctly stated, the suspension imposed on the applicant was a precautionary measure, not a disciplinary one. This is supported by Mogale, Mashego and Gradwell. Consequently, the requirements relating to fair disciplinary action under the LRA cannot find application. Where the suspension is precautionary and not punitive, there is no requirement to afford the employee an opportunity to make representations.

In determining whether the precautionary suspension was permissible, the Labour Court reasoned that the fairness of the suspension is determined by assessing first, whether there is a fair reason for suspension and secondly, whether it prejudices the employee. The finding that the suspension was for a fair reason, namely for an investigation to take place, cannot be faulted. Generally, where the suspension is on full pay, cognisable prejudice will be ameliorated. The Labour Court’s finding that the suspension was precautionary and did not materially prejudice the applicant, even if there was no opportunity for pre-suspension representations, is sound.’

Readers should note that an employer would be obliged to hear representation from an employee before taking a decision to place the employee on precautionary suspension if such an obligation is found in an employment contract, employer’s policy, collective agreement or government regulation.

Moksha Naidoo BA (Wits) LLB (UKZN) is a practicing legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

This article was first published in De Rebus in 2019 (May) DR 26.

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