Authors: Jason Shephard– Candidate Attorney
Supervised by: Lavery Modise –Special Counsel
This judgment concerns the issue of placing employees on precautionary suspension prior to conducting internal investigations and the possible holding of a disciplinary enquiry by the Company. This was the issue the Constitutional Court was called to consider in Long v South African Breweries (Pty) Ltd [2018] ZACC 7.
The Applicant is Mr. Allan Long (“Mr Long”), the erstwhile district manager of the Border District for the First Respondent, South African Breweries (Pty) Ltd (“the Company”).
Mr. Long was employed by the Company to oversee the running of the Border District, which included inter alia the licensing and maintenance of vehicles for the transportation of the Company’s product.
However, the Company discovered various discrepancies relating to the fleet’s records, where it was found that many vehicles and trailers were found to be unlicensed and unroadworthy. The Company thus sought to conduct an extensive investigation into these discrepancies. Mr Long and the fleet manager were therefore placed on precautionary suspension pending the investigation.
After these findings, the Company charged Mr Long on 09 August 2013 with (a) gross dereliction of duties, (b) gross negligence, dishonesty and derivative misconduct and (c) bringing the name of the company into disrepute. All of these charges related to the failure by Mr Long to properly manage the fleet in his district.
The disciplinary enquiry was held, and Mr Long was found guilty by the Chairperson of gross dereliction of duties, gross negligence [TT1] and bringing the name of the company into disrepute. He was thus dismissed on 14 October 2013. He thereafter lodged an internal appeal. His appeal was unsuccessful.
Dissatisfied with his dismissal, Mr Long referred two separate disputes to the Council for Conciliation, Mediation and Arbitration (“CCMA”). The first dispute related to his suspension pending the Company’s internal investigations. The second dispute related to his dismissal. On the first issue, the Commissioner found the suspension of the Applicant constituted an unfair labour practice on the basis that Mr Long had not been afforded the opportunity to make representations to persuade the Company why he should not be suspended. The Commissioner concluded that the suspension was unreasonably long, and in the circumstances, became punitive and unfair. He was accordingly awarded two months’ compensation.
The Company, aggrieved with the outcome of the two arbitrations, took both findings on review to the Labour Court. The Company’s review was successful. The Court found that where an employee has been placed on precautionary suspension, there is no requirement that an employee be given an opportunity to make representations. Moreover, the suspension must be linked to a pending investigation by the Company to protect the integrity of that process. Pertinently, the Court held that where an employee has been placed on suspension with full pay, any prejudice that the employee may suffer during the period of suspension is ameliorated by receiving a salary. The Court concluded that the Commissioner had erred in finding the suspension to be an unfair labour practice; and further that the Commissioner’s award constituted a gross irregularity. Accordingly, the Court held that the trust relationship had broken down, that the misconduct was serious, and therefore the Commissioner’s award was reviewed and set aside.
Mr Long petitioned the Labour Appeal Court. The petition was refused. Mr Long then appealed to the Constitutional Court.
The primary issue before the Constitutional Court was whether there is a requirement for a pre-suspension hearing in the case of a precautionary suspension. The issue that followed was whether the precautionary suspension was permissible.
The Constitutional Court found that the Labour Court’s reasoning that an employer is not required to afford an employee the opportunity to make representations cannot be faulted. Consequently, the Constitutional Court in a unanimous judgment penned by Theron J held that where the suspension is precautionary, and not punitive, there is no requirement to afford an employee the opportunity to make representations before he can be suspended.
Regarding the issue relating to suspension, the Constitutional Court reasoned that the fairness of the suspension is determined by two factors; firstly, whether there is a fair reason for the suspension, and secondly, whether the suspension prejudices the employee. In this case, the fairness of the suspension to carry out internal investigations was found to be fair, and secondly, the fact that the employee was paid at all times ameliorated any potential prejudice suffered by Mr Long.
One should note from this judgment that the Constitutional Court omitted one crucial issue regarding suspensions and the issue of representations: is an employer still required to afford an employee the right to make representations in circumstances where they are placed on punitive suspensions?
Whilst the Court was not called upon to consider this issue, it is apt to discuss the legal implications of representations relating to punitive suspensions. Punitive suspensions, in contrast to precautionary suspensions, are a form of suspension following a disciplinary hearing where an employee is found guilty of misconduct or a breach of the terms and conditions of their employment.[1] In essence, when an employee is placed on punitive suspension, the principles of substantive and procedural fairness must still apply in that the employee must have been given a fair hearing (in accordance with the audi alteram partem principle), the employee must have been proven guilty of an offense at a disciplinary enquiry, and a sanction of a suspension must be imposed.
Accordingly, punitive suspensions are a form of sanction which can be imposed on the employee as an alternative to dismissal, and is without pay and benefits.
Conclusion
In conclusion, it is important to highlight that the Constitutional Court did not change the legal position in circumstances where employees are afforded the right to make representations to their employer where this right is contained in contracts of employment, human resource policies, internal disciplinary procedures, or collective agreements.
However, it is important to note that the Court was not called upon to consider the legal position in respect of punitive suspensions. This is an important consideration that employers must be aware of, as the legal position has not changed in this regard. Simply put, employers are still obligated to follow the principles of substantive and procedural fairness by affording employees a fair hearing before imposing the sanction of a punitive suspension. A failure to do so may result in the employee referring an unfair labour practice dispute to the CCMA or appropriate Bargaining Council. Consequently, employers must be alive to the potential exposure that may result in failing to follow due process where this requires strict compliance.
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