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Do Employees Have a Right to a Pre-Suspension Hearing? by Wasseem Hussain Goolam

The recent Constitutional Court judgment in Allan Long v South African Breweries (CCT61/18) [2019] ZACC 7 (19 February 2019) provides clarity on the law relating to the suspension of an employee.

Mr Long was employed by South African Breweries (“SAB”), as a district manager. SAB informed him about certain irregularities concerning the vehicle fleet under his control, including issues relating to licensing and maintenance of vehicles. An investigation had revealed that many vehicles were unlicensed and not in a roadworthy condition and one of these vehicles had been involved in an accident.

Mr Long was given notice to attend a disciplinary hearing to answer three charges against him: (a)  gross dereliction of duties; (b) gross negligence; and (c) bringing the company name into disrepute. Mr Long was placed under precautionary suspension and was not given the opportunity to make representations on why he should not be dismissed. When he was subsequently dismissed by SAB, he referred the matter to the CCMA. The matter was then taken to the Labour Court, and finally there was an appeal to the Constitutional Court.

The case concerns the issue of whether there is a requirement for a pre-suspension hearing in the case of a precautionary suspension. A precautionary suspension is implemented pending the outcome of an investigation, with the employee receiving full salary. This is distinct from a punitive suspension, which is imposed as a sanction, with the employee receiving no further salary.

In the proceedings of the Commission for Conciliation, Mediation and Arbitration (“CCMA”), the first arbitrator found that Mr Long had not been given the opportunity to make representations and that this constituted an unfair labour practice. The second arbitrator found that Mr Long’s dismissal was procedurally unfair. SAB was directed to reinstate Mr Long. The matter was then taken to the Labour Court.

The Labour Court decided that a precautionary suspension requires no opportunity to make representations. The Labour Court held that the arbitrators’ conclusions were materially irregular and that any prejudice to Mr Long was mitigated because he was fully paid while on suspension. The Labour Appeal Court refused Mr Long’s petition for leave to appeal, but the matter was eventually heard by the Constitutional Court. The Constitutional Court decided that it had jurisdiction because the case concerned fair labour practices under section 23 of the Constitution.

The Constitutional Court decided that the suspension was fair, pending an investigation into the facts, and that prejudice to the employee is avoided if the suspension is on full pay.

The Constitutional Court held that if the suspension is precautionary and not punitive there is no requirement to afford the employee an opportunity to make representations.

To summarise the effect of this judgment: Employees do not have a right to a pre-suspension hearing if the suspension is precautionary. However, if a suspension is punitive, employees do have the right to a pre-suspension hearing.