There are currently two types of suspension recognised in our law, 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, during which an employee is paid. Punitive suspension is implemented as a form of punishment further to an employee having been found guilty of misconduct, and an employee is not paid during this type of suspension.

However, there are awards of commissioners of the Commission for Conciliation Mediation and Arbitration ("CCMA") where suspensions have been considered in another context, i.e. where the dilatory conduct of the employee and/ or their 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.


Disciplinary proceedings were initiated against Mark Strydom ("Mr Strydom") on 31 January 2023. However, numerous postponements ensued and, just over a year later in February 2024, the process had still not been finalised. The employer took the view that this was due to the dilatory tactics of the employee and his representative and, on the strength of the abovementioned awards, 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 ("MEIBC").

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.

It reiterated the view expressed in a number of decisions to the effect that the drafters of the Labour Relations Act envisaged expeditious disciplinary proceedings and contrasted this principle with the approach adopted in this case. It also criticised Mr Strydom for approaching the Labour Court for relief in circumstances where the disciplinary proceedings were still underway.

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."


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 Labour Relations Act ("LRA"). The question may, however, be asked whether the refusal to pay in these circumstances falls within the definition. Or, does it not render the unpaid "suspension" a "disciplinary action short of dismissal" as defined?

This decision also serves as a reminder of the following points:

  • Disciplinary hearings should be concluded swiftly and with minimal legal technicalities; and
  • 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 – that 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.

Reviewed by Peter le Roux, an Executive Consultant in ENS' Employment practice.

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