By Faan Coetzee, Executive Consultant Employment, Cliffe Dekker Hofmeyr
The recent decision of the Labour Court in Golding v HCI Managerial Services (Pty) Ltd and Others (C933/2014)  ZALCCT 52 is but one example of the approach of the Labour Court in dealing with alleged unfair suspensions and applications to interdict suspensions and disciplinary hearings.
We earlier dealt with the reluctance of the court to interdict disciplinary proceedings.
The road to fair suspensions and more particularly whether a suspension is unfair because the suspended employee was not given a hearing before the decision to suspend has been a twisted one.
The approach of the Labour Court has not been wholly consistent and various formulations of the applicable standard have been expressed, although in most cases the Labour Court has held the view that the audi alteram partem rule applies in precautionary suspension cases and that the employee is entitled to a pre-suspension hearing.
The right to a pre-suspension hearing at times was founded in non-compliance with the audi alteram partem rule based on the assumption that a suspension of a public official constituted administrative action reviewable on administrative law grounds. This principle was dealt with in Muller v Chairman, Ministers’ Council, House of Representatives and Others (2) SA 508 (C). If that were to be the case then employees in the private sector would not have been entitled to such a right based upon administrative principles.
The Constitutional Court in Chirwa v Transnet Limited and Others  2 BLLR 97 (CC) held that labour practices in the public service do not constitute administrative action and removed administrative action as a basis for the right to a pre-suspension hearing for public servants.
The issue of a pre-suspension hearing in the case of a precautionary suspension was only fairly recently dealt with extensively by the Labour Appeal Court (LAC) in Member of the Executive Council for Education, Northwest Provincial Government v Errol Randal Gradwell  8 BLLR 747 (LAC).
The LAC considered the various approaches of the Labour Court and adopted a simple approach by resorting to an interpretation of s186(2) of the Labour Relations Act, No 66 of 1995 (LRA).
The express wording of s186(2)(b) provides that “the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee” is an unfair labour practice. In previous cases the Labour Court adopted the interpretation that this section only applied to disciplinary suspensions and not precautionary suspensions.
The LAC held that this section also applies to precautionary suspensions:
(45) The right to a hearing prior to a precautionary suspension arises therefore not from the Constitution, PAJA [Promotion of Administrative Justice Act, No 3 Of 2000] or as an implied term of the contract of employment, but is a right located within the provisions of the LRA, the correlative of the duty on employers not to subject employees to unfair labour practices. That being the case, the right is a statutory right for which statutory remedies have been provided together with statutory mechanisms for resolving disputes in regard to those rights.
Employees in the private sector therefore have the same statutory rights as their counterparts in public service.
Because of the flexible nature of fairness, procedural fairness:
… depends in each case upon the weighing and balancing of a range of factors including the nature of the decision, the rights, interests and expectations affected by it, the circumstances in which it is made, and the consequences resulting from it when dealing with a holding operation suspension, as opposed to a suspension as a disciplinary sanction, the right to a hearing, or more accurately the standard of procedural fairness, may legitimately be attenuated for three principal reasons. Firstly, as in the present case precautionary suspensions tend to be on full pay for the consequence that the prejudice flowing from the action is significantly contained and minimized. Secondly, the period of suspension often will be (or at least should be) for a limited duration … and, thirdly the purpose of the suspension – the protection of the integrity of the investigation into the alleged misconduct – risks being undermined by a requirement of an in depth preliminary investigation. Provided the safeguards of no loss of remuneration and the limited period of operational are in place, the balance of convenience in most instances will favour the employer. Therefore, an opportunity to make legitimate representations showing cause why a precautionary suspension should not be implemented will or to nearly be acceptable and adequate compliance with the requirements of procedural fairness.
The Labour Court in the Golding case followed the LAC, holding that Golding was not given the opportunity to make any representations at all before he was suspended but, while that might be unfair, he faced a further hurdle.
The LAC in Gradwell pointed out that an interdict is inappropriate if the applicant has an alternative remedy: “disputes concerning alleged unfair labour practices must be referred to the CCMA or Bargaining Council for conciliation and arbitration in accordance with the mandatory provisions of S191(1) of the LRA. The respondent in this case instead sorted the clarity order from the Labour Court in terms of S158(1)(a)(iv) of the LRA to the effect that the suspension was unfair, unlawful and unconditional”.
The court further held the following: “a final declaration of unlawfulness on the grounds of unfairness will rarely be easy or prudent in motion proceedings. The determination of the unfairness of suspension will usually be better accomplished in arbitration proceedings, except perhaps if it is the ordinary or compellingly urgent circumstances. When the suspension carries with either reasonable apprehension of irreparable harm, then, more often than not, the appropriate remedy for the applicant will be to seek an order granting urgent interim relief pending the outcome of the unfair labour practice proceedings”.
The LRA provides for alleged unfair labour practices to be referred to the CCMA or bargaining councils for arbitration. In the Golding case, the applicant only referred a dispute about an alleged unfair labour practice one day before launching his urgent application and he had not taken any steps to have the arbitration before the CCMA expedited. He also failed to show any irreparable harm.
Apart from dismissing the application on a lack of urgency, the Labour Court in the Golding case held that, in addition, there was an alternative remedy available to the applicant in that the alleged unfair labour practice could be dealt with by the CCMA. In the absence of any exceptional circumstances, there was no reason for the Labour Court to interfere and the application for an interdict failed.
It is trite law that a suspension of an employee contrary to contractual arrangements will constitute a breach of the contract. The suspension of employees must be addressed in contracts of employment to avoid a breach of contract. In the public sector, other statutory provisions may also apply to suspensions.
The Golding case again emphasised that the courts are reluctant to interdict alleged unfair suspensions or disciplinary enquiries in view of the statutory remedies of the LRA being available to employees.
For more information contact Faan Cooetzee at firstname.lastname@example.org