Unpaid Suspension Pending Disciplinary Hearing

In terms of normal policies and procedures relating to disciplinary action, it is commonly accepted that, where necessary, an employer may suspend an employee on full pay pending the outcome of a disciplinary hearing. Additionally, where suspension is imposed as a sanction following such proceedings, it is generally unpaid and limited to a specific period—such as a number of weeks—depending on the severity of the misconduct.

However, in cases of precautionary suspension—that is, suspension pending disciplinary action—employers often incur unnecessary financial costs, especially when the process is deliberately delayed or abused by employees or their representatives. Such abuse may occur when postponements are requested without valid reason or due to the employee’s failure to take the necessary preparatory steps prior to the hearing.

To mitigate these costs, employers can include a provision for unpaid suspension in either the employee’s contract of employment or the employer’s internal disciplinary policy. As can be seen below, this is supported by legal precedent.

In the case of Smith v Desert Fruit Namibia (Pty) Ltd (April 2021), the Labour Court was required to consider whether an employer could suspend an employee without pay. The Court referred to National Union of Metalworkers of SA v Nu-Fibre Form Plastics SA (Pty) Ltd (2005), where it was held that unpaid suspension is permissible if the contract of employment expressly provides for it.

This principle was further confirmed in Sappi Forests (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & Others (2009), where the Court found that suspension without pay is permissible where it is authorised by legislation or by agreement between the parties.

Similarly, Professor John Grogan, in Workplace Law, 12th edition, at page 138 (section 4.6), states that under common law, the unilateral suspension of an employee does not absolve an employer from its obligation to continue paying the employee’s salary. Suspension without pay may only be implemented if such a term was agreed upon in the employment contract.

Therefore, while these authorities establish the legal foundation for unpaid suspension, it must be noted that acceptance and application by individual conciliators/arbitrators may vary. Nonetheless, including such a provision in company policy is worthwhile, provided it is drafted in a way that is fair and reasonable.

A proposed clause for inclusion in internal policy might read as follows:

"Should the offence merit the suspension of the employee from duty pending the disciplinary hearing, the employee will be suspended by the employer forthwith with full pay. However, where postponements or delays in the disciplinary process are caused or requested by the employee as a result of negligence or wilfulness, the employer reserves the right to suspend the employee without pay for the duration of the delay. This includes, but is not limited to, instances where the employee fails to inform the employer of the need for an interpreter, requests a postponement due to the unavailability of witnesses whom the employee failed to notify in time, or requests a delay due to not securing representation or necessary documents in advance."

This approach aims to ensure procedural fairness while protecting the employer from undue financial burden.