Section 23 of the Constitution of the Republic of South Africa states that everyone has the right to fair labour practices. This is the basis of the Labour Relations Act (LRA). In the case of LONG V SOUTH AFRICAN BREWERIES (PTY) LIMITED AND OTHERS; LONG V SOUTH AFRICAN BREWERIES (PTY) LIMITED AND OTHERS CCT61/18 this right in relation to suspensions was interpreted up to now.

The employee was given notice to attend a disciplinary enquiry on 28 August 2013. The three charges against him were:

(a) gross dereliction of duties,
(b) gross negligence, dishonesty and derivative misconduct, and
(c) bringing the company name into disrepute.
All of these charges related to the employee’s failure to properly manage the fleet.

The employee was acquitted, at the disciplinary enquiry, on the charge of dishonesty but was found guilty in respect of dereliction of duties, gross negligence and bringing the company name into disrepute. Consequently, he was dismissed.

There Were Two Arbitrations

The first was about the employee’s suspension pending the disciplinary enquiry. The arbitrator concluded that the employee had not been given an opportunity to make representations to show why he should not be suspended. This he found to be an unfair labour practice. The arbitrator concluded that the suspension was unreasonably long, had become punitive and unfair. The arbitrator awarded the applicant compensation equivalent to two months’ remuneration.

The next arbitration related to the employee’s dismissal. The arbitrator was of the view that the issue he had to decide was whether the failure to take appropriate action to remedy the problems with the fleet could be attributed to the employee. The arbitrator found that the employee did not commit misconduct as the alleged failures did not fall within his responsibility. The employer was directed to reinstate the applicant with retrospective effect to the date of dismissal.

On review the Labour Court held that where a suspension is precautionary, there is no requirement that an employee be given an opportunity to make representations. The Labour Court concluded the arbitrator’s reasoning, that the suspension was unduly long and had become punitive, was flawed. The Labour Court held that the arbitrator’s conclusions were materially irregular and that any prejudice to the employee was mitigated by the fact that he was fully paid while on suspension.

The Labour Court further held that the arbitrator’s award constituted a gross irregularity in that he had failed to deal with – or even consider – material evidence. In addition, he did not reasonably and rationally evaluate and determine the evidence.

The Labour Court held that, on the evidence and taking into account the seniority and nature of the employee’s position, he was guilty of dereliction of duties. As a result, the arbitrator’s award was unreasonable. The Labour Court held that there had been a breakdown of the trust relationship and that the misconduct was serious. The Labour Court ordered that the employee pay the employee’s costs.

The Labour Appeal Court refused the petition of the employee with no order as to costs. The employee then filed an application for leave to appeal to the Constitutional Court.

This case concerns fair labour practices in terms of section 23 of the Constitution. Specifically, the matter dealt with if there is a requirement for a pre-suspension hearing for a precautionary suspension.

The Constitutional Court concluded that the Labour Court’s finding – that an employer is not required to give an employee an opportunity to make representations prior to a precautionary suspension – cannot be faulted. As the Labour Court correctly stated, the suspension imposed on the employee was a precautionary measure, not a disciplinary one.

Consequently, the requirements relating to fair disciplinary action under the Labour Relations Act (LRA) cannot find application. Where the suspension is precautionary and not punitive, there is no requirement to afford the employee an opportunity to make representations.
The Court concluded the fairness of the suspension is determined by assessing, first, whether there is a fair reason for suspension and whether it prejudices the employee.

The Court did not pronounce on the fairness or otherwise of the dismissal which it seems was an oversight.

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