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Case Law & Legislation Review: Unfair labour Practices Suspension of
employees By Gary Watkins who can be contacted at www.caselaw.co.za; www.workinfo.com ---------------------------------------------------------------------- SUBJECT: Unfair labour Practices Suspension of employees ISSUE: two types of suspension, preventative suspension and punitive suspension - employer did not give the reasons for the suspension and the conditions of the suspension - held that the employee was suspended and his suspension was both substantively and procedurally unfair SUMMARY OF FACTS: The employee started working for the employer on the 19 October 2002 as a security guard earning R1900-00 per month. On 8 March 2003, the employee was arrested when he visited the site in his capacity as a site supervisor and saw people stealing. He took the employer's firearm and ran after the thief but could not find the thief as he disappeared into the crowds. He went back to the employer's premises and was arrested for possession of firearm and negligence. On the same day his supervisor made an entry in the occurrence book (OB) that he was suspended. The employee was kept in custody until the 21 March 2003 when he was released on bail. On the 27 March 2003 he reported for duty at his usual site in Hammanskraal and was told to report to Pretoria, Church Street the following day. On the 04 April 2003 when he reached the employer's offices he spoke to Mr. Downing who told him that he (the employee) was suspended pending the outcome of the magistrate court case against him. He used to be called as a reliever during the suspension period where there was a shortage of guards. He accepted this because he needed food on his table and he was also hoping that the employer would resolve the suspension issue against him. His supervisor and Mr. Downing told him that he was a reliever during that time. On the 04 August 2003 the court case was withdrawn against him due to lack of evidence. On the 05 August 2003 the employee provided proof of case withdrawal to the employer. His supervisor did not deny that he was suspended, instead he asserted that he was waiting for the finalisation of the case of misuse of the firearm before he could call the employee back as he had proof that the case was still pending. Later the employee was told that he would be taken back when the employer received its firearm back from the police. In response to this the employer's version was that the employee had never been suspended, but merely moved to a site where he did not need a firearm, pending the outcome of the case against him and that the employee chose not to take up the offer of employment at a different site. SUMMARY OF JUDGEMENT: The commissioner found that the employee had been suspended. The employee was never subjected to any disciplinary hearing, the employer suspended the employee pending the outcome of the court case but still failed to reinstate the employee after the case was withdrawn and the firearm recovered. The employer's client's request that the employee be removed from its (client's) site is not reason enough to suspend the employee under the circumstances. The employer had a duty to enlighten its client about the laws and regulations of this country. The suspension of the employee was flawed as far as the procedure is concerned in that the employer did not give the reasons for the suspension and the conditions of the suspension; and did not inform the employee as to when the suspension would be lifted. It was aggravated by the employer's lack of action even after the firearm was recovered from SAPS, and the employee submitted proof of case withdrawal from the magistrate's court. The employee's suspension was substantively and procedurally grossly unfair. Commissioner ordered that the employee be reinstated and paid his salary for the 11 months elapsed since the case had been withdrawn against him. |
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