When Can My Employer Convert My Paid Suspension to Unpaid?

06 March 2024 ,  Bridgeton Petoors 549

Generally, employees suspended during a disciplinary enquiry are entitled to their full salary. This suspension allows for a thorough investigation of the incident in the workplace without distractions or obstructions by the employee. However, there are times when an employer might feel that they’re being ‘bled out’ by an employee. This article answers the question of whether an employer can abandon their responsibility to make payment to their employee, pending a disciplinary enquiry.

Drawn-out and delayed suspensions are becoming ever-more famous, in an infamous way. Many employees charged with misconduct and placed on paid suspensions, purposefully attempt to delay the process, and postpone the seemingly inevitable by claiming unavailability of legal representation, changing legal representation at the last minute, or abusing the rules as provided for in policy or legislation. The pressing question that demands clarification is under what conditions can an employer transition an employee's suspension from paid to unpaid pending the outcome of a disciplinary hearing?

This issue was recently heard in the matter between Strydom v Arcelormittal South Africa1. In this matter, the employer, Arcelormittal, instituted disciplinary proceedings against the employee, Mr Strydom, and placed him on paid suspension. However, throughout the duration of the hearing, the employee used various strategies to delay the finalisation of the matter, which led to the employer finally converting their paid suspension to unpaid suspension. Upon application by the employee to this court, the issue was whether this conversion by the employer was lawful. 

As a general rule, employees who are suspended are normally entitled to their full compensation pending disciplinary action. However, the court noted an exception in obiter dictum. Where the suspension is extended for an unreasonably long period, due to the suspended employee’s conduct and/or delaying tactics, it would be unfair to apply the general principle that a suspended employee is entitled to full pay.2

As a result, the learned judge’s opinion was that the possibility of suspending an employee without pay exists where the disciplinary hearing is frustrated and delayed by the employee and the tactics they employ to ensure that the disciplinary hearing does not finalise within a reasonable period. Suspended employees facing disciplinary action cannot be allowed to find reasons or to employ tactics to delay the disciplinary proceedings at the employer’s costs, as that would constitute an abuse of process.3

Even though the court held that it had no jurisdiction to entertain the employee’s unlawful suspension dispute4, its obiter dicta carries persuasive weight. Employees should be mindful of the reasons given when opting to postpone a disciplinary hearing, so as to not give the impression that they are unduly delaying the finalisation of their hearing. Employers, on the other hand, should consider amending their policies, disciplinary codes and/or procedures to allow for the remedy of suspension without pay in the case of undue delays in the disciplinary enquiry caused by an employee. 

Reference list:
1. [2023] ZALCJHB 345.
2. Id para [34].
3. Id para [34].
4. Id para [51].


WRITTEN BY BRIDGETON PETOORS
Bridgeton Petoors is a candidate attorney at Miller Bosman Le Roux Attorneys.

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. 

Related Expertise: Labour and Employment
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