There are currently two types of suspension recognised in South African law, namely precautionary and punitive suspensions. Precautionary suspension is implemented as a preventive measure pending an investigation and/or disciplinary proceedings in relation to an employee’s alleged misconduct, with the employee being paid during this period. Punitive suspension is implemented as a form of punishment further to an employee having been found guilty of misconduct, with the employee not being paid during this type of suspension.
There have, however, been awards by commissioners of the Commission for Conciliation, Mediation and Arbitration (CCMA) where suspensions have been considered in another context i.e. where dilatory conduct (stalling) by the employee and/or his/her legal representative frustrated the expeditious finalisation of the disciplinary process.
This issue was considered by the labour court in Mark Strydom v ArcelorMittal South Africa J17647/2023. Mr Strydom approached the labour court on an urgent basis for an order that the decision taken by ArcelorMittal to suspend him without pay be declared unlawful as well as null and void, and that it be set aside.
Case Background
The background to this matter is important for understanding the labour court’s finding:
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A disciplinary hearing was initiated against Strydom on 31 January 2023, and he was placed on precautionary suspension with full pay. The disciplinary hearing was set down for 6 and 7 February 2023, and Strydom was informed that he would be entitled to have legal representation, which he and ArcelorMittal each then secured.
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ArcelorMittal’s representative was not available to proceed with the hearing on 6 and 7 February 2023.
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The disciplinary hearing was then set down for 26 May 2023, on which occasion Strydom was unrepresented and the hearing did not proceed. By agreement between the parties, the disciplinary hearing was rescheduled to 29 June 2023.
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On 4 September 2023, Advocate Nel (Strydom’s representative) raised three preliminary points, which were all dismissed by the chairperson on 5 September 2023. The matter was then postponed to 27 and 28 September 2023. On 27 September 2023, Nel made an application for the disciplinary hearing to be terminated and for the matter to be referred to the CCMA in terms of the provisions of Section 188A (11) of the Labour Relations Act 66 of 1995 (LRA). The chairperson dismissed the application on 28 September 2023 and ArcelorMittal called its first witness.
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After the first witness concluded their evidence, the matter was postponed by agreement to 20 to 23 November 2023, for the cross-examination of the first witness and for ArcelorMittal to call more witnesses.
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Nel cross-examined the first witness over three days (20, 21 and 22 November 2023) and the re-examination was concluded on 23 November 2023. ArcelorMittal’s second witness was called and after evidence was concluded, cross-examination started. The hearing was postponed for the finalisation of the witness’ cross-examination.
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The parties and the chairperson agreed that the matter be postponed to 1 to 4 and 10 and 11 February 2024.
The Employer’s View
The employer took the view that this lengthy postponement was due to the dilatory (stalling) tactics of the employee and his representative and, on the strength of the above-mentioned award timelines, decided not to pay Mr Strydom whilst the disciplinary process continued. Mr Strydom then approached the labour court on an urgent basis claiming that his “suspension” was unlawful. He had also referred an unfair suspension dispute to the Metal and Engineering Industries Bargaining Council.
The Labour Court Decision
The court found that it lacked jurisdiction to consider the dispute. It did so on the basis that it could not consider a claim that the employer had acted unlawfully. It also did not have jurisdiction to consider what was, in effect, a dispute dealing with alleged unfair labour practice in the form of a suspension. However, during the course of its judgment, it made various points:
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It reiterated the view expressed in a number of decisions to the effect that the drafters of the LRA envisaged expeditious disciplinary proceedings and contrasted this principle with the approach adopted in this case.
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It criticised Mr Strydom for approaching the labour court for relief in circumstances where the disciplinary proceedings were still underway.
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Most importantly, whilst the court accepted that (besides the CCMA arbitration awards) there is currently no authority entitling employers to place employees on unpaid suspension due to dilatory conduct during disciplinary proceedings, it signalled that it may be high time that unpaid suspension be instituted in these circumstances. The court remarked that where an employee’s paid suspension is extended for an unreasonably long period due to an employee’s requests for postponements or dilatory conduct by the suspended employee, it would be unfair to apply the general principle that a suspended employee is entitled to full pay. The fairness of this approach would be dependent on the facts of each case. It stated the following:
“Employees who are suspended are normally entitled to their full pay pending disciplinary action. However, where the suspension is extended for an unreasonably long period, due to the employee’s requests for postponement or other reasons causing a delay and related to the conduct of the suspended employee, it would be unfair to apply the general principle that a suspended employee is entitled to full pay. In my view the possibility of suspending an employee without pay, where the disciplinary hearing is frustrated and delayed by the employee and the stratagems, he/she employs to ensure that the disciplinary hearing does not finalise within a reasonable period, exists. Suspended employees facing disciplinary action cannot be allowed to find reasons or to employ tactics to delay the disciplinary proceedings at the employer’s costs, as that would constitute an abuse of process. This problem is compounded by the tension between the interests of the employee and the interests of the employer that are inherent in labour relations. Indeed, what is fair depends upon the circumstances of a particular case and essentially involves a value judgment. Each case will have to be decided on its own merits.”
Commentary
The court appears to accept the notion that an employer’s refusal to pay an employee their salary in the circumstances mentioned above constitutes a fair suspension as envisaged in Section 186(2)(a) of the LRA.
This decision also serves as a reminder of the following points:
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Disciplinary hearings should be concluded swiftly and with minimal legal technicalities.
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Approaching the labour court under the guise of unlawful conduct by the employer will not allow litigants to bypass the established LRA dispute resolution route and could attract the imposition of legal costs.
It should be remembered, however, that an unlawfulness claim based on a breach of contract may still be entertained by the labour court.
