The Labour Court has delivered a judgment dealing with unpaid suspension for employees who delay disciplinary hearings in a matter involving Arcelormittal and its employee, Mr Strydom.
The employer instituted disciplinary proceedings against the employee and placed him on paid suspension. However, during the course of the hearing, the employee used various stratagems to delay the finalisation of the matter. The employer then placed the employee on unpaid suspension.
The employee approached the Labour Court and alleged that his unpaid suspension was unlawful. The employer argued that the Labour Court did not have the jurisdiction to entertain the matter, as in reality, it was an unfair labour practice dispute that ought to have been referred to the bargaining council.
The court made the following remarks regarding employers converting paid suspensions to unpaid suspensions:
“[34] Employees who are suspended are normally entitled to their full pay pending disciplinary action. However, where the suspension is extended for an unreasonably long period, due to the employee’s requests for postponement or other reasons causing a delay and related to the conduct of the suspended employee, it would be unfair to apply the general principle that a suspended employee is entitled to full pay. In my view the possibility of suspending an employee without pay, where the disciplinary hearing is frustrated and delayed by the employee and the stratagems he/she employs to ensure that the disciplinary hearing does not finalise within a reasonable period, exists. 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.”
The court ultimately held that it had no jurisdiction to entertain the employee’s application:
“[59] In my view the position is this: where a litigant contends that his/her employer committed an unfair labour practice by suspending him/her, whether it is contended that the conduct is unfair or unlawful, such a litigant has to follow the process provided for in the LRA and a mere allegation of ‘unlawfulness’ will not clothe this Court with jurisdiction.”
