This article provides a practical overview of the precautionary suspension of employees under South African law, with particular focus on the Labour Relations Act 66 of 1995 (“LRA”) and the Constitutional Court’s decision in Long v South African Breweries. It explains when suspension is appropriate, what procedure is required, and how employers can avoid a suspension becoming an unfair labour practice.
Precautionary and Punitive Suspension Distinguished
South African law recognises two distinct forms of suspension, and the rules applicable to each differ considerably.
- A precautionary suspension is a temporary, protective measure imposed while an allegation of misconduct is investigated or a disciplinary process is pending. It is not a finding of guilt and is not a sanction.
- A punitive suspension is a disciplinary sanction imposed after a finding of misconduct, usually as an alternative to dismissal. Because it is a sanction, it requires a fair disciplinary process, and unpaid punitive suspension should generally only be imposed where a contract, policy or collective agreement permits it.
Employers frequently blur the two. Treating a precautionary suspension as though it were a penalty, for example by withholding pay or publicising it internally, is one of the most common routes to an unfair labour practice claim.
The Legal Framework
Section 186(2)(b) of the LRA defines an unfair labour practice to include the unfair suspension of an employee or any other unfair disciplinary action short of dismissal. An employee who believes they have been unfairly suspended may refer a dispute to the CCMA or the relevant bargaining council, generally within 90 days.
Suspension is therefore permissible, but it must be fair. Fairness is assessed with reference both to the reason for the suspension and to the prejudice it causes the employee.
Is a Pre-Suspension Hearing Required?
For many years employers were uncertain whether an employee had to be given an opportunity to make representations before being placed on precautionary suspension. The Constitutional Court resolved that question in Long v South African Breweries (Pty) Ltd and Others [2019] ZACC 7; (2019) 40 ILJ 965 (CC).
The court held that because a precautionary suspension is not disciplinary in nature, the procedural requirements that apply to disciplinary action do not apply to it. There is accordingly no general requirement that the employee be heard before being suspended. The court confirmed that fairness turns on whether there is a fair reason for the suspension and whether it prejudices the employee, and that where the suspension is on full pay, cognisable prejudice will generally be ameliorated.
Long is a significant decision for employers, but it should not be read as a licence to suspend without reason. The employer must still be able to justify the suspension, and a policy or contract that requires pre-suspension representations will bind the employer that adopted it.
When Is Suspension Justified?
A precautionary suspension will generally be justified where the employer has a reasonable basis to believe that the employee has committed serious misconduct and there is an objectively justifiable reason to remove the employee from the workplace pending the investigation. Typical reasons include a real risk that the employee may:
- interfere with, conceal or destroy evidence, including documents and electronic records;
- influence or intimidate witnesses or complainants;
- repeat the alleged misconduct; or
- otherwise jeopardise the integrity of the investigation, the business or its clients.
Where these risks can be managed by less drastic measures, such as restricting system access or temporarily changing reporting lines, employers should consider those alternatives first.
Pay and Duration
A precautionary suspension should be on full pay and benefits. Withholding remuneration during a precautionary suspension, absent a clear contractual or collectively agreed basis, is likely to be both a breach of contract and an unfair labour practice.
Suspension should also be as short as reasonably possible. An open-ended or prolonged suspension, particularly where the employer is slow to investigate or to institute disciplinary proceedings, increasingly attracts judicial criticism. Even on full pay, suspension deprives the employee of the opportunity to work and can damage their reputation and professional standing. Some sectors, particularly in the public service, are subject to collective agreements prescribing maximum periods of suspension.
Practical Steps for Employers
Before and during a precautionary suspension, employers should:
- record the reasons for the suspension and the risks it is intended to address;
- issue a written suspension letter confirming that the suspension is precautionary, is not a finding of guilt, and is on full pay;
- set out any conditions, such as remaining available during working hours, not contacting witnesses, and returning company property or access credentials;
- indicate the anticipated duration and commit to reviewing the suspension regularly;
- handle the suspension confidentially and communicate internally only on a need-to-know basis; and
- proceed promptly with the investigation and any disciplinary process.
Conclusion
Precautionary suspension is a legitimate and often necessary tool for protecting the integrity of a workplace investigation. The Constitutional Court has confirmed that employers need not hold a hearing before suspending an employee, provided the suspension is genuinely precautionary and on full pay.
However, a suspension that is imposed without a proper basis, withholds pay, or is allowed to drift will expose an employer to unfair labour practice claims and undermine the credibility of the disciplinary process that follows.
How O’Reilly Law Can Assist
The decisions taken in the first days after misconduct comes to light often determine the outcome of the entire process. A poorly framed suspension can taint an otherwise sound disciplinary case.
O’Reilly Law advises employers on whether and how to suspend employees, prepares suspension letters and conditions, manages internal investigations, and represents employers in the resulting disciplinary proceedings and in unfair labour practice disputes at the CCMA, bargaining councils and the Labour Court. We have particular experience with matters involving senior employees and sensitive allegations.
Speak to an Employment Law Specialist
If you are considering suspending an employee, or are dealing with a challenge to a suspension, it is essential to obtain advice early.
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Our team provides discreet, strategic advice to employers on suspensions, investigations and disciplinary matters.