By Christo Opperman
The Constitutional Court (CC) recently held in Long v SA Breweries (Pty) Ltd and Others (2019) 40 ILJ 965 (CC) that there is no requirement to afford an employee an opportunity to make representations, where precautionary suspension is invoked. It is relevant to explore this finding, concerning contextual application, as there are many employment scenarios in South Africa where an employee may think that it was unfair to have not been heard prior to being suspended. This hinges on whether the precautionary suspension was procedurally unfair.
Firstly, the finding may not seem that surprising, as the South African labour law dispensation has many examples of case law, which illustrate that – depending only on the circumstances – a right to be heard shall be necessary. There is, however, no general requirement or obligation for the right to be heard concerning any suspension and before institution of a precautionary suspension. On this aspect, the Long decision is welcomed. The CC in fact referred to and arguably, impliedly confirmed a lower court’s decision holding that a right to be heard is warranted depending on the circumstances. This decision in Member of the Executive Council for Education, North West Provincial Government v Gradwell (2012) 33 ILJ 2033 (LAC), where the court mentions at para 44, regarding the issue of procedural fairness that is triggered when a right to a hearing in the above context has not been afforded and where unfairness is present:
‘Fairness by its nature is flexible. Ultimately, procedural fairness depends in each case upon the weighing and balancing of a range of factors including the nature of the decision, the rights, interests and expectations affected by it, the circumstances in which it is made, and the consequences resulting from it’ (my italics).
In the case of Mashego v Mpumalanga Provincial Legislature and Others (2015) 36 ILJ 458 (LC), at para 10, the court confirmed the position, which was also confirmed by the CC, that precautionary suspension is in itself only precautionary pending the outcome of an investigation and is not intended to be punitive.
However, although dependent on the circumstances, an antecedent question may be when shall a hearing be warranted on invocation of precautionary suspension?
The Mashego case answers this quite empirically. In emphasising that in contrast to a disciplinary inquiry, the hearing concerning the invocation of suspension involves an employer setting out the details of the allegations on which suspension is based, and the employee being invited to make written representations as to why they should not be suspended (Mashego at para 11). The same was held in the Gradwell case that the suspension be compliant with the dictates of procedural fairness (Gradwell at para 44). In summary, where an employee has been provided with the details of an allegation, not the merits of the case since an investigation is still to be undertaken and to be finalised, and where an opportunity is present to make written representations, which have been considered, then subsequent invocation of precautionary suspension shall be procedurally fair.
The case of Independent Municipal and Allied Trade Union obo Hobe v Merafong City Local Municipality and Others [2017] 10 BLLR 1040 (LC) the court held at para 21:
‘[A]n employer contemplating suspending an employee need not demonstrate with any degree of certainty that the employee is guilty of misconduct or that the employee probably will interfere with the investigation of the alleged misconduct. Obviously, it is not necessary for the employer to place evidence before the employee but simply to outline the allegations of misconduct that will be investigated.’
Therefore, it seems that the common denominator as to when a hearing on precautionary suspension shall be warranted, is when an employee has not been informed of a brief satisfactory outline and/or details of allegations or alleged misconduct. It should be, I submit, elementary to allow an employee to make inquiries and written representations of what the alleged misconduct entails, where the employer will legitimately be entitled only to provide the mentioned outline of allegations and not to place evidence before the employee and to deal with the merits. The latter shall be impractical and unlikely at that point in time, since an investigation must still take place, which is quintessentially the reason for suspension. Furthermore, generally, invocation of precautionary suspension must not prejudice an employee, where it is generally accepted and as further confirmed by the CC that since such suspensions are on full pay, ‘cognisable prejudice’ shall be significantly reduced (Long at para 25).
But, depending on the circumstances and the workplace in which one is employed, other forms of cognisable prejudice besides financial loss can also occur. This may entail issues concerning impairment of dignity, job security or job security concerning the age of the employee at the time of suspension and reputation. I submit that it is not pragmatic nor constitutionally sound for a proverbial ‘turning of a cold shoulder’ on an employee, by comprehending that the only general foreseeable prejudice that shall be significantly reduced is that of a financial one when precautionary suspension is invoked. A more normative approach is necessary, in terms of the circumstances of each case, where meaningful dialogue occurs in ensuring that the audi alteram partem rule is followed. Given the varied existence of the South African demographic, with businesses ranging from small to large and where unemployment reduction is a necessity, how one treats one’s employee is pertinent, not only for the employee but also more so for the employer, to generate a healthy and dignified workplace culture.
The CC’s utilisation of the words ‘cognisable prejudice’ and limiting it to the generality of prejudice concerning financial loss of an employee to be negligible, is unfortunate. Such cognisable prejudice paradigm, I submit, is impractical within the contextual and varied types of South African workplaces that exist.
Christo Opperman LLB (UP) LLM (Wits) is a legal practitioner at Casaletti Inc in Johannesburg.
This article was first published in De Rebus in 2019 (September) DR 7.
