Navigate the complexity of suspension without pay

In any instance where an employee is suspended pending a disciplinary action, the employee is entitled to the normal pay rate for the period of the suspension. The prevalence of delay tactics within our court systems is incredibly common and has resulted in an abuse of the disciplinary process as the employer is obliged to pay the employee despite numerous delays. However, in recent years, a few labour disciplinary cases have changed this position.

In the case of Msipho and Plasma Cut (2005) 26 ILJ 2276 (BCA), an employee was suspended with full pay pending a disciplinary process. Delays in the disciplinary process were awarded at the request of the employee resulting in a much longer period for the employer to pay the employee the normal rate. The arbitrator found that in the instances where a scheduled hearing is postponed at the instance of an employee, the employer is not liable to continue to pay the employee until the actual date of the hearing.

This position was confirmed in SAWEA obo Members and Aberdare Cables [2007] 2 BALR 106 (MEIBC), with very similar circumstances and background as to the Msipho case. The arbitrator confirmed that delays and extensions at the request of the employee remains unfair to employers and accordingly the employee was not entitled to pay for the suspended period.

More recently, this principle was applied in the case of Mark Strydom v ArcelorMittal South Africa J1764/2023. Again, an employee was suspended with full pay in January 2023. The matter had been excessively delayed until February 2024. The judge stated that where a disciplinary hearing is extended for an unreasonable period of time as a result of the employee’s requests for postponements, it is unfair to apply the general principle that employees must continue to pay the employee their full salary or wage. This case confirmed, and on the basis of previous disciplinary findings, that an employer is entitled to place an employee on unpaid suspension due to delay tactics by the employee.

These cases help employers be able to manage their losses and damages due to excessive delays in a disciplinary process, provided the delays are due to the request of the employees. TPN’s HR-Pack contains all the documentation you need to guide you through this process, including notice of suspension as well as employer’s guidelines on how to handle the disciplinary process.

Get practical guidance with the TPN HR-Pack that includes essential documentation and access to expert advice to help you confidently and fairly navigate suspension cases.

Download the latest version of the TPN HR-Pack here.


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