In February 2019, the Constitutional Court handed down a judgment wherein it confirmed that an employee is not entitled to a pre-suspension hearing.
The Constitutional Court had to decide on, amongst other issues:
whether an employee has an inherent right to be heard on why they should not be suspended in cases of a precautionary suspension?
In Long v South African Breweries (SAB) (Pty) Ltd and Others [2019] ZACC 7, Mr Long was an employee at SAB as a district manager for SAB’s Board District responsible for SAB’s legal compliance in respect of its operations for its Board District.
On 10 May 2013, a trailer owned by SAB was involved in a fatal accident. It was noted that before the accident, the vehicle was in a state of disrepair and unlicensed. This accident prompted an investigation by SAB into the vehicle fleet. Three months after Mr. Long had been placed on suspension for the time the investigations, Mr. Long was given notice to attend a disciplinary enquiry for the allegations levelled against him. The disciplinary hearing found Mr. Long guilty of dereliction of duties, gross negligence and bringing the company’s name into disrepute. He was dismissed on 14 October 2013.
Two arbitrations followed in the Commission for Conciliation, Mediation and Arbitration (CCMA). The first related to Mr Long’s suspension prior to dismissal. At the arbitration, it was held that Mr Long’s suspension constituted an unfair labour practice because Mr Long had not been given a hearing before his suspension and the suspension was unreasonably long. The arbitrator awarded compensation equivalent to two months’ remuneration.
The subsequent arbitration related to Mr Long’s dismissal. The arbitrator held that Mr Long had been unfairly dismissed because the illegalities regarding the vehicles did not fall within his responsibility and ordered that SAB reinstate Mr Long.
SAB took both arbitration awards on review and in terms of the first award the Labour Court held that where a suspension is precautionary, and with full salary, there is no requirement that an employee be given an opportunity to make representations and as such, the Labour Court set aside the arbitrator’s finding that the suspension was an unfair labour practice.
In reviewing the second arbitration, the Labour Court held that Mr Long had been guilty of dereliction of duty and that the arbitrator had come to the contrary conclusion by irrationally and improperly evaluating the evidence. The arbitrator’s award was set aside and substituted with an order declaring Mr Long’s dismissal to be fair. The Labour Court ordered that Mr Long pay SAB’s costs in both review applications.
The Labour Appeal Court refused Mr Long’s application for leave to appeal.
The Constitutional Court partially upheld the application for leave to appeal. The Constitutional Court refused leave to appeal on the merits of the review, holding that the Labour Court had correctly held that an employer is not required to give an employee an opportunity to make representations before a precautionary suspension. The Constitutional Court further held that the Labour Court was correct in holding that the dismissal had been fair and that Mr Long should not be reinstated. However, this Constitutional Court granted leave to appeal against the Labour Court’s costs order. In labour matters, costs do not ordinarily follow the result and are usually punitive in nature. The Labour Court failed to justify its adverse costs order, and the Constitutional Court found that there were no reasons for awarding costs against Mr Long. The Labour Court’s costs order was therefore set aside.
The Constitutional Court supported the Labour Court’s position that the suspension imposed on the applicant in this matter, was a precautionary measure, not a disciplinary one. The Court therefore held that when assessing whether a precautionary suspension is permissible, the presiding officer must determine whether there is a fair reason for the suspension and whether it prejudices the employee. But suspension for the purpose of an investigation is a fair reason, and where suspension is on full pay “cognisable prejudice will be ameliorated.” Even if the employee was not given an opportunity to make pre-suspension representations, under the circumstances, the suspension did not materially prejudice Long. As for the delay or length of the suspension, the court did not find it to be substantial.
Thus, in terms of the above judgment, the Labour Relations Act’s requirements which relate to fair disciplinary action do not apply when suspensions are instituted for precautionary as opposed to punitive reasons. As the Court summarised, “[w]here the suspension is precautionary and not punitive, there is no requirement to afford the employee an opportunity to make representations.”
It should however be noted that there is an exception to this rule. Where an obligation is found in an employment contract, employer’s policy, collective agreement or government regulation an employer would be obliged to hear representation from an employee before taking a decision to place the employee on precautionary suspension if such.
The above judgement has provided much certainty on this issue. Employers had previously adopted the practice of holding pre-suspension hearings and then only after receiving submissions, deciding whether to implement the precautionary suspension. Clarity has finally been provided by our Constitution Court.
Author
(Ntombi Baloyi – Candidate Attorney)