LAW BITES: Pre-suspension Hearing
Constitutional Court Decision 19 February 2019
Good news for employers who have held pre-suspension hearings prior to suspending an employee. The Constitutional Court has recently confirmed that where a suspension is precautionary and the employee will still receive full pay and benefits, there is no need to convene a pre-suspension hearing prior to suspending the employee.
The case emanated from the Labour Court which held that where a suspension is precautionary, and with full salary, as in this case, there is no requirement that an employee be given an opportunity to make representations. The Labour Court set aside the arbitrator’s finding that the suspension was an unfair labour practice.
The Labour Appeal Court refused an application for leave to appeal.
Unhappy with the Labour Appeal Court’s decision, an application for leave to appeal was brought to the Constitutional Court. In a unanimous judgment written by Theron
J, the Constitutional Court partially upheld the application for leave to appeal. The Constitutional Court refused leave to appeal on the merits of the review, holding that the Labour Court had correctly held that an employer is not required to give an employee an opportunity to make representations before a precautionary suspension. This was differentiated from a disciplinary suspension.
In light of this decision, employers will be able to suspend employees for precautionary reasons without the need to convene a pre-suspension hearing and obtaining submissions from the employee.
