Page 74 - Q&A 2019/2020

New developments with precautionary
suspensions

Lucian Companie
March 2019

“I have a suspicion that one of my branch managers is busy stealing stock
and cooking the books. The numbers just don’t add up. I want to suspend him
to allow a full investigation to be done, but don’t want to give him a heads-up
so he can hide evidence. Can I suspend him immediately without giving him
a chance to provide reasons so I can ensure that he leaves the premises?
Please advise.”

It is a general principle of our labour laws that dealings between an employer
and an employee must be fair and reasonable in all aspects. This includes a
decision by an employer whether to impose a suspension or not.
There are two types of suspensions and it is important to differentiate between
the two. The first type is commonly referred to as a ‘precautionary suspension,
where an employee is a suspended pending the outcome/conclusion of a
disciplinary hearing and/or investigations. The second type of suspension is a
suspension which is a sanction imposed by an employer following a disciplinary
hearing.

In your case, the suspension being considered is the former, namely a
precautionary suspension.

Until recently, an employer had to satisfy three requirements for a valid Labour
precautionary suspension:
1. The employer must have a justifiable reason that the employee has
been engaged in serious misconduct;
2. There must be a justifiable reason for denying the employee access
to the workplace based on the integrity of any pending investigation
into the alleged misconduct; and
3. The employee must be given an opportunity to state a case before the
employer makes a final decision to suspend the employee.
It has long been held that the requirement that an employee be entitled to
make representations flows from the principle of natural justice and that both
sides should be heard. This would require the employee to be allowed the
opportunity to state reasons why he or she should not be placed on suspension
pending the outcome of an investigation / disciplinary hearing. Case law has
in the past also supported this view and it was an established principle that not
affording an employee an opportunity to make representations before being
suspended rendered the suspension unfair and grounds for being set aside.

68