Employment law update – Suspension without pay

April 1st, 2021

In American Products Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2021] 1 BLLR 64 (LC), the employee was employed by American Products Services (the Company) as a truck driver and was involved in a motor vehicle accident that resulted in damage to the Company’s vehicle. The next day, the Company suspended the employee pending an investigation into the accident. The suspension was without pay and the employee was denied access to the Company’s premises.

The Company thereafter instructed the employee to produce an eye test report and informed the employee that a failure to produce the report would result in his ‘instant dismissal’. The employee failed to produce the eye test report by the stipulated date and was dismissed following a disciplinary hearing, which he failed to attend.

Prior to his dismissal, the employee referred an unfair labour practice dispute concerning his suspension to the Commission for Conciliation, Mediation and Arbitration (CCMA). At the CCMA, the Commissioner noted that there were two types of suspension. The first type of suspension was a ‘holding operation’ where the suspension is not designed to impose discipline, but is rather for reasons of good administration. The second type of suspension serves as a form of disciplinary action. The Commissioner found that the first type of suspension applied to the employee because the Company suspended him pending an investigation into the accident. The Commissioner held that it is unlawful to suspend an employee without pay pending disciplinary action.

Regarding the procedure followed by the Company, the Commissioner found that while there was evidence that the employee was involved in alleged serious misconduct, which required investigation, there was no evidence that justified denying the employee access to the workplace. Further, the employee had not been provided with an opportunity to make representations before he was suspended by the Company.

In the circumstances, the Commissioner found that the employee’s suspension was both substantively and procedurally unfair and ordered the Company to pay the employee an amount equivalent to six months’ remuneration as compensation.

Disgruntled by the outcome, the Company took the Commissioner’s award on review. The Company alleged that the Commissioner failed to apply his mind to the facts and had committed a gross irregularity in reaching the conclusion that the employee’s suspension was substantively and procedurally unfair. The question before the Labour Court (LC) was accordingly whether the Commissioner, in making the award, came to a decision that no reasonable decision-maker could reach.

The LC noted that s 186(2)(b) of the Labour Relations Act 66 of 1995 provides for an unfair labour practice involving ‘the unfair suspension of an employee or any other unfair disciplinary action short of dismissal’. It is now settled that this includes both suspension imposed as a disciplinary sanction and ‘precautionary’ suspension pending disciplinary action. The latter form of suspension must be on full pay. The court held that the Commissioner had correctly found that the suspension was a ‘holding operation’ and not a disciplinary sanction. While no disciplinary action may have taken place had the employee submitted the eye test report, the court found that this was irrelevant to the finding that the suspension without pay was unlawful.

As regard to the failure by the Company to provide the employee with an opportunity to make representations prior to the suspension, the court referred to the Constitutional Court (CC) judgment of Long v South African Breweries (Pty) Ltd and Others [2019] 6 BLLR 515 (CC) in which it was held that where the suspension is precautionary and not punitive, there is no requirement to afford the employee an opportunity to make representations. This said, the CC found that generally, where suspension is on full pay, ‘cognisable prejudice will be ameliorated’.

In the present case, however, the prejudice caused to the employee had been exacerbated by the Company’s decision to suspend him without pay. The court was of the view that given the punitive nature of the suspension, the employee ought to have been provided with an opportunity to make representations prior to any action being taken. This would not have been the case had the employee been suspended with pay.

The court accordingly found that the decision by the Commissioner was one that a reasonable decision-maker could reach, and the Commissioner could not be faulted for awarding the employee six months’ compensation. The review application was dismissed with costs.

Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.

This article was first published in De Rebus in 2021 (April) DR 35.