In a recent decision, MEC for Education, North West Provincial Government v Gradwell, the Labour Appeal Court seemed to have spoken the final word on the holding of a suspension hearing prior to suspending an employee pending a disciplinary investigation (also referred to as a "holding suspension"). This has been the subject of various contradicting labour court decisions. In a holding suspension, employees are suspended on full pay and normally where the employer fears some interference from the employee in its operations or in its investigations during or pending disciplinary investigations or a disciplinary hearing.
Notwithstanding the fact that a holding suspension is on full pay, it is accepted that the employee may still suffer prejudice as a result of being suspended due to the impact that it may have on the employee's integrity, dignity, reputation and standing in the community.
Gradwell launched an urgent application in the Labour Court challenging his suspension from employment as the acting head of the Department of Education of the North West Provincial Government, pending an investigation into allegations that he had engaged in serious misconduct. The Labour Court found his suspension to be unlawful since there was no objectively justifiable reason to deny Gradwell access to the workplace, and since he had not been afforded a proper opportunity to be heard prior to his suspension. The interdict was granted.
On appeal, the Labour Appeal Court was required to decide whether there was a legal basis justifying Gradwell's suspension, as well as whether the employer had complied with the principle of the right to be heard, in imposing the suspension.
It was alleged that Gradwell had caused a former privately-owned institution which provided care for severely intellectually disabled children and young adults to be registered as a public school, when it was not a school. It was further alleged that there were significant accounting irregularities, unaccounted monies and directorships held by Gradwell in construction companies that were to render services to this institution. Prior to his suspension, Gradwell was asked to provide the employer with reasons why he should not be suspended. According to Gradwell he needed time and access to prepare a response and could not do so within the time frame given to him. He was afforded more time which he did not believe was sufficient. He did not provide any reasons why he should not be suspended and he was suspended.
The Labour Appeal Court found that the justifiability of a suspension rests on the existence of a reason which, at face value, causes a belief that the employee committed serious misconduct. A second line of enquiry is then necessary to deal with the justifiability in denying access to the workplace. The nature, likelihood and seriousness of the alleged misconduct would be the relevant considerations.
On the second question before the court, namely whether the employer failed to observe the principle of the right to be heard, the court acknowledged that there was no consensus in the case law as to the nature and extent of an employee's right to a hearing prior to being suspended. The court held that the common law regarding the contract of employment (where it does not contain a contractual entitlement to a hearing prior to suspension) had not developed to the point that such a right could be read into the contract of employment.
The court found that the right to be heard stemmed from the Labour Relations Act as it forms part of the duty of the employer not to subject its employees to unfair labour practices. It is a statutory right which has statutory remedies. Unfair labour practices should accordingly be dealt with by the Commission for Conciliation Mediation and Arbitration or the appropriate bargaining council.
The court found Gradwell's suspension fair and lawful. The court found that where an employee is afforded an opportunity to make written representations as to why a holding suspension should not be implemented, this would in the ordinary course be acceptable and adequate compliance with the requirement of procedural fairness.
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