This article discusses the three minimum requirements for a fair suspension
Source: Chris Todd of Bowmans
The Labour Court judgment of Mogothle v the Premier of the North West Province and the MEC for Agriculture, Conservation and Environment (delivered on 6 January 2009) concerned the suspension of the Deputy Director General of the Department of Agriculture, Conservation and Development in the North West Province (the DDG). He was suspended by the MEC pending an investigation into allegations that he had approved a state grant to an entity in which he and his family had an interest. The DDG was not given the opportunity to make representations why he should not be suspended.
The DDG approached the Labour Court on an urgent basis, seeking the upliftment of his suspension. He relied on a contractual right to audi alteram partem – that is the right to be heard before a decision is taken that is adverse to your rights or interests. The DDG did not rely on the Labour Relations Act (LRA). Rather, he based his claim on a contractual right: effectively that the MEC and the Premier had breached their contractual obligation to deal fairly with him.
Van Niekerk J decided that he could consider the DDG’s claim in the Labour Court since the Constitutional Court case of Chirwa did not remove contractual rights – which an employee can enforce either in the Labour Court or the High Court. Every employment contract requires that the employer treat the employee fairly. This meant that an employee can only be suspended for a fair reason and following a fair procedure. Since the DDG was not afforded a hearing before he was suspended, the suspension was found to be procedurally unfair. The MEC should have given him an opportunity to state his case before deciding to suspend him.
In relation to the merits of the suspension, the following three minimum requirements were identified for a fair suspension: the employer must have a justifiable reason to believe that the employee has engaged in serious misconduct; there must be an objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the misconduct (or another relevant factor that would jeopardise the investigation or the interests of affected parties); and the employee must have an opportunity to state a case before the employer makes any final decision to suspend him. There was no evidence of any risk to the Department nor any third parties if the DDG remained at work. Nor was there evidence of any danger that the DDG might pose to anyone’s safety or wellbeing.
For these reasons, Van Niekerk J ordered that the decision to suspend the DDG be set aside.