Unfair Suspension
What is unfair suspension in 2021?

Being unfairly suspended from work leaves you well within your rights to approach the CCMA, and if your case is successful, you will be able to return to work as well as receive compensation from your employer. In order to decide whether or not to take action, one must first be familiar with the basic legal framework set out in the Labour Relations Act. One will then be able discern between having been unfairly suspended from work and a fair suspension.

Different types of suspension

There are two kinds of suspension that occur in the workplace, namely punitive and precautionary.
A punitive suspension is imposed as a disciplinary measure upon the employee. It was decided that the employee’s misconduct justifies a suspension from work without any pay. It is a form of direct punishment. You have been unfairly suspended from work if you were not given the opportunity to state your own case with your employee, and make your own representations as to why you should not be suspended.

Precautionary suspension means that the employee is perceived to have committed a misconduct, and in order for the employer to make an objective assessment among witnesses, the employee needs to be suspended for a period of time before the disciplinary hearing. The concern is that if the employee is present, he/she might hamper the investigation by either intimidating witnesses, or destroying documents or computer records. In this case the employee still receives a salary while an internal investigation is conducted. In the instance of precautionary suspension your employer is not obliged to hear your objections to the suspension. The employer must have reasonable apprehension that the employee will interfere with the internal investigation in some way.

In both cases, the employer must be able to prove that there is a genuine reason to believe that the employee has been engaged in misconduct.

When is a suspension fair?

- It is very important to know that, in the case of punitive suspension, you are entitled to make your own representations, and give reasons against the suspension.

- Your employer needs to provide reasons for their decision to suspend you, as well as a written statement informing you of the impending suspension.

- What might happen after the suspension and the investigation, needs to be made clear to you.

On the other hand, what is an unfair suspension from work?

- Not receiving your remuneration during a precautionary suspension.

- Your suspension is unreasonably long.

- Your employer cannot justify the reasons for your suspension.

- Being denied the chance to state your case in the event of a punitive suspension.

- You did not receive written notice of the employer’s intention to suspend you.

Pre-suspension hearing

Before your suspension comes into effect, you must be given the opportunity to make representations as to why your suspension must not take place. The hearing should not focus on whether you are actually guilty of the allegations made against you, but rather whether a suspension is necessary. Most employers will include this in the Notice of Suspension, giving you 24 hours to prepare and make representations. Sometimes you will be afforded to make your representations at a hearing, otherwise you might simply be required to make written representations.


What actions should you take when you are unfairly suspended from work?

Section 186 (2) (b) of the Labour Relations Act simply defines unfair suspension from work as “unfair labour practice”, and you may refer the dispute to the CCMA, or the Commission for Conciliation, Mediation and Arbitration. The CCMA is an independent authority and has no affiliation with any particular political party, business or trade union. It exists to resolve labour disputes, and in the specific case of being unfairly suspended from work, the Labour Court will typically refer you to the CCMA. To refer a dispute to the CCMA, the first thing you need to do is download the “7.11 form” from the CCMA’s website. Filling it in is very simple. After completing the form the next step is to “serve the parties”. This involves serving copies of the completed 7.11 form to the relevant parties: one belongs to you, a copy goes to your employer and another goes to the CCMA. An official yet costly way of serving the documents is using a sheriff to deliver them to the different parties. You may also deliver the document to your employer personally , making sure that the person responsible for receiving it signs the other copies as well. You may also simply email the form to your employer, making sure that you confirm with your employer that they received it. This is very important, and you need to make sure that you are able prove that you sent it through, e.g. keeping the email. From here, you will file the case with the CCMA by taking both the served copy and the original copy to your local branch of the CCMA. They will keep the 7.11 form, and use the contact details that you supplied in the form to notify you of a hearing date.