Paying Someone to Obstruct Their Own Disciplinary Hearing

A precautionary suspension is not a punishment. That is the foundational principle, and it matters because everything else flows from it. The employee has not been found guilty of anything. The suspension exists to protect the integrity of the investigation, to keep the employee away from witnesses, evidence, or the workplace environment while the process unfolds. Because it is not punitive, the default position in South African labour law is that it must be on full pay.

But there are cases where an employee has been on precautionary suspension for months, drawing full salary. The hearing date arrives. So does a sick note. The hearing is postponed. Another date is set. Preliminary points are raised. They are dismissed, the matter remains part heard. At the next sitting the employee’s witnesses are not available, and after several weeks, there is still no end in sight for this straightforward disciplinary hearing. Or is there?

The Labour Court in Strydom v ArcelorMittal SA (2024) 45 ILJ 931 (LC) put it plainly. Where a suspension is extended for an unreasonably long period due to the employee's requests for postponement or other reasons related to the employee's own conduct, it would be unfair to apply the general principle of full pay. Suspended employees cannot be allowed to employ tactics to delay disciplinary proceedings at the employer's cost. That constitutes an abuse of process.

This did not come out of thin air. In Msipho v Plasma Cut (2005) 26 ILJ 2276 (BCA), the employee was sitting at home on full pay when his hearing date arrived, and his union representative simply did not pitch. A postponement was requested and granted, but the employer stopped paying for the weeks that followed. The employee ran straight to arbitration, claiming an unfair labour practice. The arbitrator was not sympathetic.

In SAEWA obo Members v Aberdare Cables (2007) 2 BALR 106 (MEIBC), the union requested a postponement of the disciplinary hearing. The employer agreed, but not unconditionally. The extended period would be unpaid. When the unpaid suspension was challenged, the arbitrator upheld it. Full pay during precautionary suspension is the norm, not an absolute entitlement, and that norm does not stretch to cover periods of delay that the employee and their representatives have themselves created. There was no unfair labour practice.

What emerges when you read the cases together is a principle that the obligation to pay a suspended employee was never meant to be unconditional. An employee who deliberately prolongs the process to preserve that income stream is abusing both the process and the principle underlying it.

Commentary drawing on Sappi Forests (Pty) Ltd v CCMA (2009) 30 ILJ 2629 (LC) makes the point clearly. An unpaid precautionary suspension must be independently justified. It cannot simply piggyback on the ordinary power to place an employee on precautionary suspension. The employer needs to identify where its authority to convert comes from.

In practice that means looking first at the employment contract, then at the disciplinary code or policy and then at the conditions attached to the original suspension notice. If none of those documents contemplate conversion to unpaid suspension where the employee causes avoidable delays, the employer is in a weaker position but not completely defenceless.

The steps the employer followed in Strydom provide the clearest available template.

• Build a detailed chronology first. Record every postponement, who caused it, what reason was given and what accommodation was already extended. Do not overlook your own delays. An arbitrator will look at the full picture and employer-caused delays weaken the case.

• Give written notice to the employee. Set out specifically which conduct and which delays are being attributed to them. Confirm the intention to convert.

• Give the employee a genuine opportunity to respond in writing. Not a formality. A real opportunity to put their version.

• Consider what they say. If there is a credible explanation for any of the delays it must feature in the decision.

• Record the outcome and the reasons in writing.

• Consider alternatives before converting. Set a firm final hearing date. Warn that the hearing will proceed in absentia if the employee fails to attend without valid reason. Where illness is being relied on repeatedly, require an independent medical assessment. Document all of it.

The strongest cases for conversion are those where the employee's conduct is deliberate, persistent, well documented, and disproportionate to any genuine concern. Vague or strategically timed medical certificates. Repeated preliminary points that have already been ruled on. Legal representatives who run cross-examination for weeks on peripheral issues. Where that pattern exists and is properly documented, the Strydom principle gives employers a meaningful tool.

The law is developing in a direction that favours employers who take disciplinary delay seriously. But the gap between a good legal argument and a successful one is usually found not in the courtroom but in the documents prepared months before the matter gets anywhere near dispute resolution.

Review your disciplinary code. If it does not address conversion to unpaid suspension where delays are attributable to the employee, it needs updating. Review your standard suspension notices. If they do not contemplate the possibility of conversion, build it in.

Paying someone to obstruct their own disciplinary hearing is not a position any legislature intended employers to be stuck in. The law is catching up. Your documents should too.

https://www.youtube.com/watch?v=evUtRsnNS_o

This article is for informational purposes only and does not constitute legal advice. For specific legal guidance on protected disclosures, employment practices, or compliance obligations, consult a qualified labour law practitioner.

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