The Constitutional Court has confirmed that there is no requirement that an employee be given an opportunity to make representations prior to a precautionary suspension.

In the matter of Long v South African Breweries (Pty) Ltd and Others, Mr Long was employed as a District Manager and was suspended when a trailer was involved in a fatal accident.  The vehicle was found to be in a state of disrepair and unlicensed.  One of Mr Long’s responsibilities as District Manager was to ensure that SAB complied with all legal requirements of its operations in his district.  A subsequent investigation revealed that no corrective action had been taken following the accident and that several other vehicles were not roadworthy.  Long was suspended and SAB then conducted an intensive whereafter Long was given notice to attend a disciplinary enquiry and was dismissed.

At the CCMA the arbitrator concluded that there was a valid reason to suspend Long but because he had not been given an opportunity to make representations why he should not be suspended, this constituted an unfair labour practice and Long was awarded two months remuneration as compensation.  When dealing with his dismissal, the CCMA found that the failures did not fall within Long’s responsibility and he was reinstated.

On review, the Labour Court concluded that where a suspension is precautionary, there is no requirement for an employee to be given an opportunity to make representations prior to the suspension.  The suspension should be implemented to protect the integrity of the pending investigation.  Accordingly, the Labour Court held that the suspension was not an unfair labour practice and reviewed and set aside the arbitrator’s decision in this regard.  In respect of Long’s dismissal, the Labour Court set aside the arbitrator’s award that the dismissal was unfair in that the arbitrator had failed to deal with or even consider material evidence together with other irregularities in the manner in which the evidence was dealt with.  The Labour Court held that given Long’s seniority and the nature of his position, he was guilty of dereliction of duty and as a result the award was unreasonable and substituted with a finding that the dismissal was fair.

Long was refused leave to appeal to the Labour Appeal Court and filed an application for leave to appeal in the Constitutional Court.

The Constitutional Court was satisfied that the case concerned fair labour practices as contemplated in Section 23 of the Constitution and confirmed its jurisdiction to deal with the matter.

The Constitutional Court confirmed that an employer is not required to give an employee an opportunity to make representations prior to a precautionary suspension because the suspension imposed is “a precautionary measure, not a disciplinary one”.  For this reason, the Constitutional Court confirmed that the requirements relating to fair disciplinary action as set out in the Labour Relations Act, cannot find application to the circumstances.

There will still be a factual determination to assess whether there is a fair reason for the suspension and secondly whether it prejudices the employee in any way.  Generally, if the facts show that the suspension is necessary to allow a thorough investigation then the suspension will not be faulted.  The court accepted that where the suspension is on full pay, the general prejudice that follows a suspension, is usually ameliorated.

The court also considered the question of costs and accepted that in labour matters, the general principal is that costs do not follow the result.  Instead the Labour Court may make a cost order according to the requirements of the law and fairness.  It is therefore important for any court to set out the reasons why any cost order is awarded with reference to the law and fairness.