Labour Court clarifies precautionary suspension laws in Bombela case

Image source: kues1 from Freepik

The judgment provides important guidance on the distinction between precautionary and disciplinary suspension, the procedural requirements for suspension, and the limits of challenging such action under South African labour law.

Background

Itumeleng Lehlokwa, a train driver and shop steward, was suspended on full pay by Bombela Operating Company after allegedly disseminating confidential company documents. The suspension was described as precautionary and was intended to allow for an investigation into the misconduct.

Lehlokwa challenged the suspension as an unfair labour practice, arguing that he was not given an opportunity to make representations before being suspended and that the suspension was unjustified.

The CCMA arbitrator found the suspension to be both procedurally and substantively unfair and awarded one month’s compensation. Bombela sought to review and set aside the award.

How the case defines suspension

The Labour Court drew heavily on the Constitutional Court’s decision in Allan Long v South African Breweries (Pty) Ltd, which held that:

• A precautionary suspension is not disciplinary in nature.
  
• There is no legal requirement to allow an employee to make representations before a precautionary suspension.
  
• The fairness of the suspension depends on whether there is a valid reason for it (such as the need to conduct an investigation) and whether the employee suffers material prejudice.

In this case, the court found that the suspension was precautionary, pending an investigation, and that Lehlokwa had not suffered material prejudice as he was suspended on full pay. Therefore, the suspension was both procedurally and substantively fair.

Read the full judgment here

Legal implications

This judgment reinforces several key legal principles:

• Precautionary suspension is not punishment: It is a temporary measure to facilitate an investigation and does not amount to disciplinary action.
  
• No automatic right to a hearing: Employees do not have a right to make representations before a precautionary suspension unless such a right is explicitly provided for in a collective agreement or company policy.
  
• Company policies must be clear and updated: If a company’s disciplinary code provides for pre-suspension representations, it must either honour that provision or amend the code to align with current legal standards.
  
• Substantive fairness is narrowly defined: The employer does not need to prove that the employee’s presence would jeopardise the investigation but only that the suspension is necessary for the investigation to proceed.

When employee suspensions go wrong

7 May 2018

Key takeaways

For employers

• Precautionary suspension is legally permissible

  Employers may suspend employees on full pay as a precautionary measure during investigations, without the need for a prior hearing, provided the suspension is not punitive.

• Policy alignment is crucial

  Internal disciplinary codes must be updated to reflect current legal standards. If a policy provides for pre-suspension representations, it should either be honoured or amended to avoid procedural challenges.

• Clarity and consistency matter

  Employers must clearly communicate the nature and purpose of the suspension. Consistency in applying disciplinary measures helps avoid claims of unfair labour practices.

• Substantive fairness has a narrow scope

  The Constitutional Court has confirmed that a precautionary suspension is substantively fair if it is intended to facilitate an investigation, even without evidence that the employee’s presence would hinder the process.

Employee suspension: Employers still getting it wrong

28 Jan 2019

For employees

• Know the nature of your suspension

  Not all suspensions are disciplinary. A precautionary suspension is temporary and intended to allow an investigation to proceed—it does not imply guilt or punishment.

• Understand your rights under company policy

  If your employer’s disciplinary code provides for the right to make representations before suspension, you may be entitled to exercise that right. However, this is not guaranteed unless explicitly stated.

• Challenge unfairness appropriately

  If you believe your suspension is unfair, ensure you understand whether it was precautionary or disciplinary. Use the correct legal channels to challenge it, such as referring an unfair labour practice dispute to the CCMA.

• Suspension on full pay limits prejudice

  Courts are less likely to find a precautionary suspension unfair if it is on full pay and does not materially prejudice you.

Final thoughts

The Labour Court’s decision in Bombela confirms that precautionary suspension is a legitimate tool for employers, provided it is used fairly and for a valid purpose.

While procedural fairness remains important, the law does not require a hearing before suspension unless explicitly stated in policy or agreement.

This case serves as a reminder that clarity in internal policies and alignment with legal precedent are essential to managing workplace discipline effectively.