Recently, the labour court and the Public Health and Social Development Sectoral Bargaining Council (the bargaining council) had the opportunity to deal with the following different suspensions:
- precautionary suspension on full pay
- punitive suspension on no pay
- suspension where the employee loses registration with a controlling body
- precautionary suspension without pay
- unlawful precautionary suspension
The purpose of this article is to, firstly, analyse the latest developments in the above regard and, secondly, to determine some of the principles so applicable to each potential type of suspension.
_____________________________________
Precautionary suspension on full pay
- This type of suspension is covered by s186(2)(b) of the LRA.
- One of the leading cases in this regard is Aminto Precast and Civil Engineering CC v CCMA and Others [2023] 6 BLLR 521 (LC) (Aminto) – so referred to by Arbitrator Makhanya in National Public Service Workers Union obo Lamprecht v Department of Health KwaZulu-Natal (unreported case number PSHS105-23/24) (Lamprecht).
Punitive suspension on no pay
- Again, this type of suspension is covered by s186(2)(b) of the LRA.
- Again, one of the leading cases is Aminto (LC), so referred to in Lamprecht (Bargaining Council award).
Where the employee is suspended because he/she lost registration with a controlling body
- In Lamprecht (supra), the scenario was as follows: registration with the controlling body is an inherent requirement for an employee to perform his/her duties – such body being the Health Professions Council of South Africa (HPCSA), seeing that the employee was employed as an emergency care services shift leader. The employee lost the registration because the employee did not pay the relevant fees and, thus, the relevant licence held by the employee had expired.
- Lamprecht (supra) ruled that, should the employer suspend the employee under the above circumstances (because he lost registration with the relevant controlling body), this does not amount to suspension contemplated in terms of s186(2)(b) of the LRA – seeing that s186(2)(b) of the LRA only provides for two types of suspensions, namely, a precautionary suspension and a punitive suspension.
- So, on what basis can the employer challenge the inability of the employee to perform his/her services in this regard? – it is submitted that such basis is the ground of a supervening impossibility of performance, as set out in National Union of Mineworkers and Another v Samancor (2011) 32 ILJ 1618 (SCA), also applicable to the following scenarios:
- imprisonment
- military call-up
- closed shop
- any other legal prohibition on employment
Precautionary suspension without pay
- This type of suspension is also covered by s186(2)(b) of the LRA.
- The labour court, per Prinsloo J (in Strydom v Arcelormittal SA (2024) 35 SALLR 131 (CC)) (Strydom), expressed the viewpoint that, where an employee unreasonably delays the matter being proceeded with and has no intention of constructively participating in the investigation, the employer may be permitted to alter a precautionary suspension with pay to one without pay.
- A procedural fairness requirement identified by the LC is that the employer may require the employee to submit reasons as to why the suspension should not be changed from a ‘with pay’ scenario to a ‘without pay’ scenario.
- The above approach exists on the basis that a value judgment is to be made and such possibility be implemented if it is fair under all circumstances.
Unlawful precautionary suspension
- This type of suspension is not catered for in section 187(b) of the LRA.
- With reference to Chezi v SA Police Service and Others (2021) 42 ILJ 184 (LC), where it was held that, for the LC to have jurisdiction, the applicant is to identify the specific statutory provisions (in terms of the LRA or any other law) which confirm such jurisdiction, it was held in Strydom that there are no provisions in the LRA permitting the LC to have jurisdiction over an alleged unlawful precautionary suspension.
