Labourwise – The Employer’s Choice
It is a well-known fact that an employee who is suspended pending a disciplinary hearing is entitled to be paid. What is not so well known, is that the employee could claim additional compensation if the suspension is regarded as being unfair. In a well-publicised case, the CCMA awarded an employee five months’ remuneration in addition to the normal pay that the employee received while on suspension.
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(-) Although a formal hearing is not required prior to suspension pending a disciplinary hearing, the audi alteram partem principle should be observed. The suspension notice, prior to a disciplinary hearing, should make provision for the employee to make any submission regarding her-his suspension by a certain date or time.
When should you suspend an employee during a disciplinary investigation?
Suspending an employee suspected of misconduct can have a serious impact on their reputation, so it shouldn’t be automatic in every disciplinary investigation. Sometimes though, it is inappropriate for them to remain at work while allegations are investigated. So when should you suspend an employee during a disciplinary investigation and how should you go about it?
Managing discipline – Investigation to possible dismissal: A guide
Both employer and employee should say which witnesses they intend to call.
Prepare for the meeting thoroughly, planning: how you will introduce the meeting; the procedure the meeting will follow, including allowing the employee to call witnesses and submit witness statements; and questions you need to ask.
This is ordinarily referred to as ‘precautionary suspension’, and is resorted to when an employer is of the reasonable opinion that its’ business interests are potentially at risk due to the employee continuing to be present during an investigation into suspected misconduct, and-or prior to the concluding of a disciplinary hearing.
Suspension Before A Disciplinary Hearing
Our Labour Court has made clear that such a suspension must have good valid reasons before the court will recognize that it is legitimate. In addition the principle of Audi Alteram Partem must be observed by the employer. The Audi Alteram Partem principle means that the accused employee must be able to give his version before a decision is made to suspend.
Over the past few months there has been a lot of noise around suspension during disciplinary procedures. Traditionally, it was felt that if you remove an employee from the workplace, this strengthens any disciplinary cases – as it was felt you have shown they were not safe to continue in the role. However, Employment Tribunals have started to frown upon knee-jerk suspension in reaction to incidents and have identified a lot of risks attached to suspending employees.
What it covers
It is important to note that an employee should only be suspended if the alleged misconduct is gross in nature (very serious), such as theft, fraud, assault, dishonesty, sexual harassment, etc. and that his presence in the workplace may prejudice the employer in that the employee may genuinely interfere with the investigation, that he may manipulate documented evidence, victimise and-or threaten the witnesses, etc.