“What can I do if I have been suspended for a month without being charged with anything?” This is one of the questions that recently came up on our Facebook page. Scorpion Legal Protection answers by looking at the labour laws around suspension.
Reasons for suspension
1.) Precautionary suspension
2.) Punitive suspension
Precautionary suspension is when the employer suspends an employee because they are carrying out an internal investigation, and don’t want the employee in question to interfere with this. They suspect that the employee is involved in misconduct. During this suspension, the employee still receives their salary and benefits.
Punitive suspension is used as part of the disciplinary process, and is meant to punish the employee. It means that the correct disciplinary processes were followed, because suspension is basically only less serious than complete dismissal from the company. In this kind of suspension, you will not receive pay or benefits.
Procedure for suspension
The employee must be given clear reasons why they are being suspended. In the case of punitive suspension, the employer must have carried out the disciplinary process and an employee must be given the opportunity, within reasonable time, to state their case and reasons why they shouldn’t be suspended. With precautionary suspension though (where you are getting full pay and benefits), the Constitutional Court confirmed a Labour Court Ruling that the employer doesn’t have to give the employee an opportunity to give reasons why they shouldn’t be suspended.
The employer must send the employee a letter informing them of their suspension and it should state how long the employee will be suspended for. Best practice is that the suspension is not longer than 30 days. The employee must also be told what will happen after the suspension and the investigation.
How long can you be suspended?
As mentioned above, usually suspension is 30 days or less, because investigations must be carried out as quickly and efficiently as possible. However, our labour laws do not actually specify a minimum or maximum period for suspension, just that the length of suspension must be fair and reasonable. Employers should have this information outlined in their disciplinary action policies, and you should ask them to provide you with these.
What is an unfair suspension?
A suspension can be unfair if:
- The suspension is punitive, but the company did not follow the disciplinary process, and simply suspended the employee.
- You are not given an opportunity to explain and defend yourself even though the company’s policies say you must be given this opportunity. The employer must stick to the company’s code of conduct and policies.
- Your suspension is not directly linked to protecting the ongoing investigation into the matter. The company must be able to show why you would be a threat or interfere with their investigation if you continued to work.
- You receive a precautionary suspension, but are not paid your full salary and benefits. For precautionary suspension, the company must still pay you.
- The suspension is unreasonably long. What counts as ‘unreasonable’ is open to interpretation.
Unfair suspension can be taken to the CCMA
If you suspect that your suspension is unfair, you can refer the matter to the CCMA for investigation. If your case is successful, the CCMA could rule that the company must lift the suspension and award you compensation.
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3 must-know tips for CCMA arbitration
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If you have a query, ask Scorpion Legal Protection on Facebook and ask your question during our next Live Q&A (every first Thursday of the month).
* This is only basic advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.