One of the common tools in an employer’s disciplinary arsenal is the precautionary suspension of an employee, pending the outcome of an internal investigation. The standard practice is that such suspensions are with full pay, aligning with the principles of procedural fairness and the presumption of innocence until proven guilty. However, this practice has been increasingly exploited, resulting in drawn-out, expensive suspensions that place an unfair financial burden on employers.
Certain circumstances may arise during the suspension period, such as the unavailability of their representative, submitting questionable medical certificates, or continuously changing their union representation, leading to disciplinary proceedings being delayed. The question that arises is: Can the suspension without pay be imposed when an employee is the cause of the delay? The answer, as confirmed in case law, is yes — provided the employer acts fairly, transparently, and consistently.
KEY CASE LAW ON THE MATTER
- Msipho v Plasma Cut (2005) 26 ILJ 2276 (BCA)
In this case, the employee was suspended with full pay pending a disciplinary enquiry. On the hearing date, his union representative was absent, and the employee requested a postponement to arrange for representation. The matter was postponed for six weeks, but the employer did not pay the employee during this extended period. The employee claimed an unfair labour practice, arguing he was entitled to full pay throughout.
The arbitrator disagreed, holding that it was the employee’s responsibility to ensure his representative was available. Since the postponement was granted at the employee’s instance, the employer was not obligated to pay for that period. To do so would encourage unnecessary delays at the employer’s expense.
- SAEWA obo Members v Aberdare Cables [2007] 2 BALR 106 (MEIBC)
Similarly, in this case, the disciplinary hearing was postponed at the request of the employee’s trade union. The employer agreed to the postponement on the condition that the extended period would be unpaid. The arbitrator confirmed that while suspended employees are normally entitled to full pay, this principle should not apply when delays are caused by the employee. The unpaid suspension was therefore not an unfair labour practice.
- Strydom v ArcelorMittal South Africa (J1764/2023) (2024) 45 ILJ 931 (LC)
A recent Labour Court judgment reaffirmed the above principles. The employee, suspended on full pay, engaged in continuous delays and postponements through legal manoeuvres. The employer eventually informed the employee that, due to the prolonged delays caused by him, the suspension would become unpaid.
The Labour Court held that disciplinary enquiries must be conducted simply and expeditiously and should not be treated as criminal proceedings. When an employee contributes to delays, it is not unfair for the employer to stop paying during the extended suspension period. This judgment confirms that employees may not abuse the suspension process at the employer’s cost.
Practical Implications for Employers
- Delays caused by employees (e.g., failure to secure representation, questionable sick notes, or frivolous postponements) may justify suspension without pay, only if the employer acts within the bounds of fairness.
- Medical certificates should not be accepted at face value. Employers are advised to rely on the Ethical and Professional Rules of the Health Professions Council of South Africa (HPCSA) when assessing the legitimacy of medical certificates and to have internal guidelines on this issue.
- Employers must amend their disciplinary policies to:
- Emphasise the need for expeditious hearings.
- Include provisions allowing for unpaid suspension in cases of employee-caused delays.
- Clearly define roles and responsibilities during the disciplinary process, especially with respect to securing representation and complying with hearing schedules.
Conclusion
The courts and bargaining councils have made it clear: suspension with pay is a principle grounded in fairness, but it should not be used as a loophole for employees to manipulate disciplinary processes. Employers have both the right and the obligation to manage such processes effectively. By updating disciplinary policies and acting decisively but fairly, employers can safeguard themselves from prolonged financial exposure while maintaining procedural integrity.
