Many, if not all, employers have had to grapple with the riddle of how best to deal with employees who have misconducted themselves to a degree requiring suspension, and how best to affect such a suspension (pending lawful disciplinary proceedings, of course) whilst giving effect to the employee’s fair process rights under South African employment law. Chief among the necessary considerations is whether the relevant employee can be summarily suspended, without being afforded the right to make submissions militating against suspension before the suspension is actioned.
The question therefore becomes: Am I, as an employer, entitled, depending on the severity of the misconduct, to summarily suspend an employee pending a hearing? And further, will such summary suspension be considered lawful?
It is commonly accepted that a failure to give effect to the comprehensive procedural requirements for disciplinary matters may serve as a catalyst for the employee to refer an unfair labour practice dispute to the CCMA, and where such failure breaches a material term of the employee’s employment contract, a right to redress in the Labour Court. Many employment contracts incorporate the provisions of the employer’s code of conduct and/or disciplinary code by reference and where such codes prescribe a mandatory right to a hearing on the part of the employee prior to suspension being affected, an employer’s failure in this regard may have significant financial implications.
The position has been clarified in the 2019 judgment of the Constitutional Court in the matter of Long v South African Breweries (Pty) Ltd & Others, where the court was required to decide whether a precautionary, summary suspension, pending a disciplinary hearing, was fair in circumstances where the employee was not afforded the right to first make submissions as to why he should not be suspended.
Mr Long, the employee and applicant in this instance, referred an application for leave to appeal to the Constitutional Court after being unsuccessful in prior Labour Court review proceedings instituted by Mr Long. In the Constitutional Court, Mr Long maintained that the Labour Court’s finding that employees are not entitled to a pre-suspension hearing did not pass constitutional muster and, furthermore, that such a finding contradicted existing case law on the subject. South African Breweries (“SAB”), the employer, conversely argued that the Labour Court was correct in its conclusion that suspension of an employee, subject to a disciplinary hearing, is lawful where the purpose of such suspension is precautionary in nature.
The Constitutional Court unanimously found in favour of SAB and decided that the position taken by the Labour Court on the issue of pre-suspension hearings could not be faulted. As a result, the Constitutional Court held that the dismissal of Mr Long had been fair and that he should not be reinstated.
The current position in our law is, accordingly, that where an employee is suspended for precautionary reasons (i.e. in that the employer was concerned that the employee’s continued presence in the workplace would provide him/her with the opportunity to interfere with potential witnesses and/or to destroy pertinent evidence) the employer is under no obligation to afford the employee a pre-suspension hearing before affecting the suspension.
However, much of the above will depend on the wording of the employer’s internal disciplinary policies and protocols, and where such policies and protocols expressly record an obligation to afford an employee a pre-suspension hearing, the employer would be obliged to follow the required procedure regardless of the dicta in Long. This is especially so in circumstances where an employee’s employment contract explicitly incorporates the contents of the employer’s internal disciplinary policies as material terms of the contract.
For further assistance and/or advice on the issue of employee suspension and the contents of internal disciplinary policies, please do not hesitate to engage with our team of attorneys who will happily assist.
 Long v South African Breweries (Pty) Ltd & Others  ZACC 7