The legal position on pre-suspension hearings has changed

For many years, we have advised employers who are about to suspend an employee on full remuneration to provide such employee with an opportunity to make representations on their proposed suspension. The Constitutional Court has on 19 February 2019 handed down judgment in the matter of Long v South African Breweries (Pty) Ltd and Others [2018] ZACC 7 finding that when an employer suspends an employee, there is no requirement to have a hearing prior to the suspension. Put differently, the legal position on pre-suspension hearings has now changed.

Background facts

Mr Long was employed by South African Breweries (Pty) Ltd (SAB) as its district manager for the Border District. One of his core responsibilities related to management of a fleet of company vehicles. In May 2013, one of these vehicles was involved in a fatal accident. It was subsequently discovered that the vehicle was not roadworthy and unlicensed. After an investigation by SAB, it was discovered that numerous vehicles, which Mr Long was responsible for, were not roadworthy and unlicensed. After a disciplinary hearing, Mr Long was dismissed for misconduct on the basis of dereliction of duties, gross negligence and brining the company name into disrepute. At the start of the investigation, Mr Long was suspended from work until his dismissal.

Mr Long subsequently instituted separate referrals to the Commission for Conciliation, Mediation and Arbitration (CCMA) - one relating to his suspension (prior to dismissal) and the other relating to dismissal.

On the suspension referral, the CCMA found that this constituted an unfair labour practice as Mr Long had not been given a hearing prior to suspension and that the suspension was unreasonably long. Mr Long was awarded compensation amounting to two months of his remuneration.

Pre-suspension hearings

One of the central questions before the Constitutional Court was whether an employer is required to hold a hearing before suspending an employee. The purpose of the hearing would be to allow the employee to make representations to ultimately convince an employer not suspend the employee.

The Labour Court found that an employer is not obliged to grant an employee the opportunity to a hearing prior to precautionary suspension. In order to ensure fairness, the suspension must be linked to a pending investigation and ultimately should be used by an employer as a measure to protect the integrity of that investigation. If the employee is suspended on full remuneration, this will mitigate any prejudice suffered by the employee. The Labour Court therefore held that the suspension of Mr Long did not amount to an unfair labour practice.

Ultimately, the Constitutional Court agreed with the Labour Court on this question. Where the employer suspends an employee as a precautionary measure, such an employee is not entitled to a pre-suspension hearing. In order to assess the fairness of a suspension, two considerations should be borne in mind:

Fairness
  • Is there a fair reason for the suspension of the employee?
Prejudice
  • Will the suspension prejudice the employee concerned?

The Constitutional Court upheld the decision of the Labour Court. The fact that Mr Long did not receive a pre-suspension hearing did not amount to an unfair labour practice. The suspension was also held to be fair in that it was used to protect the integrity of the investigation. Mr Long was also suspended on full remuneration and, despite the length of the suspension, this mitigated any prejudice suffered by him

Workplace policies

Importantly, this judgment does not mean that suspension can be used as a form of discipline (i.e. suspension without pay or for unreasonably long periods of time). Employers are still required to ensure that investigations into alleged misconduct by employees are completed within a reasonable period of time.

Employers who currently provide for pre-suspension hearings in their workplace policies should consider amending such policies to align them with this judgment.​