Did you know that you may be guilty of an Unfair Labour Practice by suspending an employee prior to a disciplinary enquiry?

Well up until very recently that is.

An important decision was recently taken by the Constitutional Court regarding precautionary suspension in the matter of Long v South African Breweries (Pty) Ltd and Others; Long v South African Breweries (Pty) Ltd and Others (CCT61/18) [2019] ZACC 7 (19 February 2019).

In this matter, the employee was charged with ensuring that his employer’s fleet of vehicles were legally compliant. Unfortunately, the employee had been derelict in his duties and an un-roadworthy trailer was involved in a fatal accident. Mr Long was suspended from the date of the accident, in or around May 2013, until the outcome of his disciplinary enquiry was communicated to him on 14 October 2013. Mr Long challenged his suspension arguing that it was an Unfair Labour Practice as he had not been given an opportunity to make representations regarding the suspension. A CCMA arbitrator upheld this argument, but this finding was later overturned by the Labour Court.

Relying on the right to fair labour practices as contained in Section 23 of the Constitution, this matter was brought before the Constitutional Court in February 2019. The apex court upheld the decision made by the Labour Court stating as follows:

“the suspension imposed on the applicant was a precautionary measure, not a disciplinary one…Generally where the suspension is on full pay, cognisable prejudice will be ameliorated. The Labour Court’s finding that the suspension was precautionary and did not materially prejudice the applicant, even if there was no opportunity for pre-suspension representations, is sound.”