Apart from yelling at him and humiliating him in front of customers, Reggie’s* boss accused him of theft, and then gave him a letter of suspension. Reggie has been working for the employer for three years. Is this fair? Scorpion Legal Protection explains.
Start with the employer’s internal processes
Sometimes employees are so upset with their employer, or scared of them, that they want to go directly to the CCMA. While this is understandable, when they look at unfair suspension cases, the CCMA always looks to see if the employee first made use of the company’s internal procedures to try and solve the problem before coming to the CCMA.
Reggie should start by lodging a formal grievance against his manager/boss for the unfair treatment (humiliating him in front of customers) and also by finding out whether the suspension is with pay or not. The employer must give the reasons why the employee is being suspended. The reasons for the suspension and whether or not it’s with pay can make a difference in whether or not the suspension is unfair.
Not every employer will have departments that deal with grievances, or even have a process in place for employees to lodge grievances, but if they do, you should make use of them. Regardless, they will still have to follow the legal process for taking disciplinary action against an employee.
The disciplinary process for suspending an employee
If there is an allegation that an employee has committed an act of misconduct (like theft), the employer must follow these steps:
- The employer will need to determine whether the alleged misconduct is serious misconduct or non-serious misconduct in terms of the company’s disciplinary procedures and policies.
- If the alleged misconduct is regard as serious misconduct, the employer will have to determine whether the employee should be suspended while they carry out investigations. This depends on if:
- There is a possibility that the employee may interfere with witnesses
- There is a possibility that the employee might tamper with evidence
- There is a possibility that the employee might retaliate against the complainant (in Reggie’s case, this is his manager/boss)
- There is a possibility that the employee might commit another act of misconduct
- The employer believes that the presence of an employee at the workplace might endanger the wellbeing or safety of colleagues.
- The employer will then need to conduct an investigation in order to get evidence for the allegation of misconduct and decide if the evidence is enough to prove the employee’s guilt.
- If the evidence is considered enough, the employer must decide on the charges they are bringing against the employee and issue a disciplinary notice in writing. At the disciplinary hearing, the employee will be given a chance to respond to the charges, argue against them and give his side of the story.
- The evidence the employer gathered during the investigation will be used during the disciplinary hearing.
- After the disciplinary hearing is concluded, the chairperson will give a ruling and recommendation.
You cannot just be suspended without pay
An employer may not just suspend you without pay.
There are two types of suspension:
- Precautionary suspension. You are suspended while the employer conducts their investigation. You must get full pay and all your regular benefits.
- Punitive suspension. Your employer has gone through the full disciplinary process, conducted the hearing and found you guilty of misconduct. Instead of firing you, they offer to suspend you without pay for a period of time as a punishment for your actions. This cannot happen without going through the full disciplinary process.
If the suspension is a precautionary suspension but it is without pay, then it is classified as an “unfair labour practice” in terms of s186(2) of the Labour Relations Act and the employee can refer the matter to the CCMA or relevant bargaining council.
You may also be interested in:
Is suspension without pay fair?
Fixed-term contracts and warnings
CCMA vs Labour Department
If you have a query, follow Scorpion Legal Protection on Facebook and ask your question during our next Live Q&A (every first Thursday of the month from 11:30- 13:30).
* This is only basic paralegal advice and cannot be relied on solely. The information is correct at the time of being sent to publishing. Cases are based on fictional characters unless otherwise indicated.
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