Discipline and Dismissal

               

When should an employee, who is under investigation or perhaps pending a disciplinary hearing, be suspended from duty? Under what circumstances may you suspend? The answers to these questions are important, because suspension must also be fair – and the employee is entitled to challenge a suspension that he/she feels is unfair.
        

Generally, suspension would be justified under the following circumstances: 

[a] if the accused is likely to interfere with witnesses

[b] if the accused is likely to tamper with evidence

[c] if the accused is likely to retaliate in some way against the complainant, perhaps with

violence. This applies particularly if an employee has laid a complaint against a higher level employee.

[d] the seriousness of the offense must be considered, for example to not suspend in a case of sexual harassment would be foolish.

[e] the employer suspects that the alleged offence may be repeated if the accused is allowed access to the premises. 

Remember that in all cases, the suspension may only be without loss of benefits to the employee and it must be fair under the circumstances.

    
However, thought must also be given to questions like "If the employee is suspended, is he/she likely to use the opportunity to abscond?" In a case of theft or fraud, this may be a very important question, and you may have to consider charging the accused criminally to prevent him/her absconding.

        

It is rather silly to suspend for cases like unauthorized absenteeism, for example, or for some other minor infringement of company rules. I have heard of an employer who suspended an employee for 2 weeks pending a disciplinary hearing, because the employee was late for work on two consecutive days. Such a suspension is ridiculous to say the least.

   
Suspension without pay may only be imposed as a disciplinary sanction, and then usually as an alternative to dismissal, but only with the written consent or agreement of the employee.

In all cases, the notice of suspension must be in writing, and the reason for the suspension must be stated. It must be stated that the suspension is without loss of benefits, and the duration of the suspension should be stated if possible.


Unfair suspensions fall within the definition of "Unfair labour practice" as per section 186 (2) (b) of the Labour Relations Act, so employers are advised to exercise caution in deciding whether or not to suspend an employee from duty. If the suspension is for an unreasonably long period, or if it is blatantly grossly unfair, or if there are no real prospects of the matter ever reaching the  disciplinary hearing stage, the employee can refer the matter to the CCMA and seek re-instatement in his/her employment.

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

Read More >>>

 

Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

Read More >>>

 

Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

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Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

Read More >>>

 

 

 

 

 

 

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