Unfair Suspension Can Attract Six Months Salary Compensation
According to the s185 (b) of the Labour Relations Act read with s186 (2) (b) of the same Act every employee has the right not to be subjected to unfair labour practice including unfair suspension. A suspension, therefore, has to be both substantively and procedurally fair. It should be for a fair reason and should only be effected after a fair procedure has been followed.
The Labour Court In Mogothle v Premier of the North West Province & another [2009] 4 BLLR 331 (LC) noted that precautionary suspensions pending an alleged misconduct enquiry are tantamount to arrests and should therefore be used when there is reasonable apprehension that the employee will interfere with investigations or pose some other threat.
An employee should only be suspended if there are prima facie (on the face of it) grounds for believing that he has committed a serious misconduct and there are objectively justifiable reasons for excluding the employee from the workplace.
Reasonable grounds to exclude the employee from the workplace include the possibility of:
1) interfering with witnesses;
2) tampering with evidence;
3) committing further acts of misconduct;
4) retaliating against the complainant or company.
The Commissioner in Tungwana / Robben Island Museum (2009) 18 CCMA 6.4.2, reported in Butterworths (2009) 11 BALR 1178 (CCMA) found that the suspension of Mr Tungwana was unfair awarded him six months’ salary as compensation. The commissioner found that the charges against Tungwana were unfounded as such there were no prima facie (on the face of it) grounds to believe that he had committed serious misconduct. The employer, therefore, had no valid reason to exclude him from the workplace.
In another case, the Judge in The Labour Court in SA Post Office Ltd v Jansen van Vuuren NO & others (2008) 29 ILJ 2793 (LC) supported the CCMA commissioner’s finding that the suspension of the employee was unfair as he was not aware of the nature of the offence he was alleged to have committed and was not given an opportunity to make representations concerning his suspension. The employee had been suspected of causing a power outage in the server room simply because of his presence in the room. The employee had the necessary authorisation to be in the room as he was installing shelves. The employer had placed a burden on him to prove that he was not responsible for the outage.
The court supported the commissioner’s view that the employee was left in the dark as to the nature of the offence and was not given an opportunity to say why he should not be suspended or state his case. The commissioner reasoned that the suspension usually prejudices an alleged offender, psychologically and in terms of future job prospects.
It is however important to note that the Judge reviewed and corrected the amount of compensation that the commissioner had granted from six months’ salary to one month’s salary.
We will discuss the Judge’s reasoning and compensation for unfair labour practice in our next blog.
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