Discipline and Dismissal

  By Ivan Israelstam


Employees are suspended from duty for different reasons that may include a temporary lay-off due to operational circumstances.
That is, during retrenchment consultations, either party may suggest temporary lay-offs as an alternative to retrenchment. This might be implemented where the employees agree to the lay-offs and there is some hope of more work and revenue being acquired in the future. In such circumstances the employees would not be paid, but would still be employees of the employer. Employers must be careful not to hire new employees in place of employees who have been laid off as this would indicate that there had been no good reason for the lay- offs and the employer could well be forced to pay the employees for the lay-off period.

Where there is a large number of workers or where the lay-off period is a long one this payment could come to an extremely high amount. The employer's intention behind a suspension may be to make the employee's working circumstances so uncomfortable that he/she resigns. This motive is both illegitimate and dangerous. Employees sometimes resign on being suspended and charge the employer at CCMA with constructive dismissal. However, the employee will not easily succeed with such a charge because such an employee is obliged to go through the disciplinary process rather than resign.

Should the employee claim at arbitration that the suspension was a sham on the employer's part the employer must be given the opportunity to show that it had good reason to suspend the employee and that there was some basis for the suspicion of misconduct. The employer may need to investigate serious allegations made against the employee. Where the employee is in a position of official or unofficial power, the suspension may be necessary in order to ensure that her/his presence at the workplace will not interfere with the investigation.

This is a legitimate reason for suspension, but the employee must be on full pay during the suspension period. The employer must be sure that the suspension does not have the effect of breaching a contractual right of the employee, otherwise a civil suit could result. The employer may have a need to avert the danger of the employee repeating the alleged offence. For example, if the employee is suspected of assaulting a colleague, a suspension may be merited to avert the possibility of a repeat assault.  Again, the employee must be on full pay during the suspension period and the danger in question must be real. The suspension of the employee may be as a form of punishment of the employee by the employer. Here, the employee is normally suspended without pay.

However, such suspensions are often illegitimate. This is because:

  • Cutting an employee's pay may breach the provisions of the Basic Conditions of Employment Act.
  • The employer may have no fair reason for punishing the employee and withholding his/her pay. Such suspensions are too often implemented while the employer is in a fit of rage.
                       

The dangers for the employer are that the employee could challenge the fairness of the suspension itself or could take the eviction as a dismissal and take the employer to CCMA or bargaining council on this basis. Suspension without pay may, in certain circumstances, be legitimate. This might be, for example, where the employee already has a final warning for the same type of offence, but the employer does not necessarily wish to dismiss the employee. The employer may then give the employee a choice of dismissal or an agreed suspension without pay for a limited period (preferably not more than two weeks).

In the case of Mabitsela v SAPS (2004, 8 BALR 969) the employee, a policeman, was suspended without pay pending a charge of murder. The police regulations do allow for such suspensions to be without pay. However, Mabitsela claimed at the bargaining council that his suspension was unfair because he had been on unpaid suspension for five months. The arbitrator found that the suspension itself was fair, but that it had been unfair to implement the suspension without pay.

This case shows that, even where regulations allow employers to suspend employees without pay, this may still be found to be unfair under the circumstances. If a suspected murderer can win such a case, it would be even easier for employees who have committed lesser offences to win their cases.

The issue of when suspensions are fair and appropriate is not clear cut and employers are warned not to implement suspensions until they have obtained advice from a reputable labour law expert.

  • Ivan Israelstam is chief executive of Labour Law Management Consulting. Phone him at 011 888 7944 or 082 852 2973 or  
  • Our appreciation to Ivan and The Star newspaper for permission to publish this article…

Case Law Summaries and Articles

 

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Escape route: “Resignation with immediate effect”

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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.

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