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Marthinus van Staden is Associate Professor at the Wits University School of Law, where he teaches Jurisprudence and Labour Law. He obtained his doctorate in Labour Law from the University of Pretoria in 2018.
The Public Service Commission (PSC) recently reported that R26-million was paid to government employees on precautionary suspension for the 2021/22 fiscal year – 167 employees were suspended with pay at national and provincial departments where disciplinary proceedings were still ongoing.
In one case, an official was suspended with full pay for 883 days while his disciplinary process was completed. Prolonged precautionary suspensions at South Africa’s state-owned enterprises are also rife.
Precautionary suspensions are generally used as an interim measure imposed for orderly administration, not as a disciplinary sanction. They are intended to protect the interests of both the employer and employee while investigating allegations against an employee.
The taxpayer’s interests should also be paramount in public service.
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These suspensions with pay would not be unfair if the employer is reasonably apprehensive that a legitimate business interest would be harmed by the employee’s continued presence in the workplace.
Precautionary suspensions should therefore be distinguished from disciplinary suspensions, where employees are suspended, without pay or on reduced pay, as a sanction for a finding of misconduct.
Prolonged precautionary suspensions can result in the payment of salaries to employees who are not actively contributing to their positions. This means taxpayers are paying for a service that is not being provided. In a country with limited resources, this is frustrating and wasteful.
Precautionary suspensions often result in legal fees and investigation costs, which are also paid for by taxpayers. This drains the public purse and diverts resources from other vital areas like healthcare, education, and infrastructure development.
From an organisational perspective, prolonged suspensions without pay can decrease productivity and lower employee morale. The absence of an employee for an extended period can lead to project completion delays and affect the quality of work produced.
Furthermore, suspensions without pay can also lead to employee resentment and a lack of trust in the management’s decision-making process. This can create a toxic work environment that negatively affects the organisation’s performance.
Prolonged suspensions have also eroded public trust in government institutions. When taxpayers see their money being spent on legal fees and salaries for suspended employees, they become disillusioned with the government’s ability to manage public resources effectively.
Guide for managers
To deal with precautionary suspensions in the public service, the Public Service Precautionary Suspensions Guide has been adopted. This aims to provide public service managers with a uniform framework to manage precautionary suspensions within their respective departments.
It also aims to provide principles that apply to suspending employees and promote best practices in giving effect to suspensions in their departments.
The principles that apply to the process of suspending employees are:
The employer must have a valid and fair reason for imposing a precautionary suspension against an employee based on fair labour relations principles;
The period of precautionary suspension must be reasonable and justifiable but should not exceed 60 calendar days;
Precautionary suspensions must be reviewed regularly;
There must be a balance between the employee’s interests in continuing their daily work and the disciplinary and operational requirements of the employer;
Employees must be informed of the steps the department is initiating without delay and throughout the process; and
If suspended, the employee is entitled to a speedy and effective finalisation of the disciplinary process.
A recent study found that government departments don’t always comply with the processes and procedural requirements for precautionary suspensions. The study also found that precautionary suspensions are not fairly applied according to legislative frameworks. Unsurprisingly, the study found that precautionary suspensions hurt the service delivery and performance of the public service.
Where an employee or his union seeks postponement of a disciplinary hearing, it has been ruled that the employee is not entitled to pay after being granted the postponement (see Saewa obo Members v Aberdare Cables [2007] 2 BALR 106 (MEIBC)).
But often delays in bringing disciplinary hearings are caused not by employees, but by employers. There is ostensibly an inability among public sector employers and human resource departments to investigate an instance of misconduct in the public sector, often relying on expensive external service providers who have little interest in the speedy resolution of disciplinary processes.
For this reason, PSC commissioner Anele Gxoyiya has stated that there is “a need to beef up human resources in government departments”.
Depending on the circumstances, prolonged precautionary suspensions may lead to a claim of unfair labour practice for purposes of section 186(2)(b) of the Labour Relations Act. An arbitrator has substantial scope for framing an appropriate remedy, including ordering the suspension to be lifted. This remedy, however, lies in the hands of the suspended employees who, allowed to stay home on full pay, have little incentive to follow this course of action.
In fairness to suspended employees, it should also be pointed out that they can suffer significant occupational detriment and career damage from their suspension. In addition, the stress caused by prolonged waiting periods may be significant.
Employees are entitled to receive compensation during precautionary suspensions because, in terms of our common law, they still tender their services to their employers.
The Pension Funds Act allows employers to deduct money from an employee’s retirement fund when they retire
Source: DailyMaverick | Read More