The blind spot in Long vs South African Breweries (Pty) and Others

Many employers are confused on whether they must afford an opportunity to employees to make representations before placing them on precautionary suspension. In most instances the confusion is caused by the misunderstanding of the legal principles laid down by the Constitutional Court in Long vs South African Breweries (Pty) Ltd and Others (“Long”).[1]

In this article we revisit the Long case and discuss when precautionary suspension is required and the conditions which necessitate that an employee be afforded an opportunity to make representations prior to being placed on precautionary suspension.

The distinction between precautionary suspension and suspension

There are two types of suspensions, precautionary suspension and suspension from work as a sanction for misconduct.

Precautionary suspension is when an employee is placed on suspension for duty as a precautionary measure to enable the employer to conduct and conclude an investigation of misconduct allegedly committed by the employee. This type of suspension is not a presumption of guilt, and the employee is suspended with full pay and benefits arising from his/her employment. In most cases, the employers rely on placing an employee on precautionary suspension as a means to protect the integrity of any investigation into the alleged misconduct.

Suspension, otherwise known as full suspension, is suspension issued to an employee as a disciplinary sanction. When placed on full suspension the employee’s remuneration is suspended for the entire period of suspension.

Our focus in this article is on precautionary suspension, and we shall not discuss full suspension any further.

When is precautionary suspension required?

The test to determine whether an employee must be placed on precautionary suspension is not exhaustive. The employer is required to, “ha(ve) a justifiable reason to believe, prima facie at least, that the employee has engaged in serious misconduct; secondly, that there is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct or some other relevant factor that would place the investigation or the interests of affected parties in jeopardy.”[2]

The abovementioned principle means that there must be a reasonable belief that the employee has committed alleged serious misconduct. In Edumbe Municipality v Putini and Others[3] the Labour Appeal Court, held that there must be something tangible in the possession of the employer to have a reasonable justification to believe that the employee committed serious misconduct.

The purpose of placing the employee on precautionary suspension is meant for what the court termed “good administration”[4] of the investigation process which may ultimately lead to the disciplinary hearing of the employee.

Is the employee entitled to make representations?

To answer this question is it important to discuss the Long case, the brief facts are as follows: Mr. Long was employed by the South African Breweries (Pty) Ltd (“SAB”) as its district manager, from 2008 to 2013. His job description was to make sure that the SAB complied with all legal requirements in respect of its operations in the Border District, including the legal requirements in respect of a fleet of vehicles.[5]

In December 2012, the SAB informed him about certain irregularities in respect of the Border District vehicle fleet. The irregularities included fraudulent activities relating to the licensing of the vehicles. Mr. Long then instructed his colleagues to rectify the reported irregularities.[6]

The SAB investigated the irregularities and found that most of the vehicles were unlicensed, and unroadworthy. The following year in 2013, a trailer was involved in a fatal accident, and it was found that the vehicle was unroadworthy and unlicensed. The employer conducted another investigation.[7]

The investigation revealed that several vehicles were still unroadworthy and unlicensed; this means that even after Mr. Long was informed about the irregularities, nothing was done from his side to implement the initial findings of the investigation conducted by SAB.

As a result, SAB placed Mr. Long on precautionary suspension, to ensure that its further investigations were unhindered. He referred a dispute to the Commission for Conciliation Mediation and Arbitration (“CCMA”) in terms of section 186 (2) (b) of the Labour Relations Act, 66 of 1995 (“the Act”) to challenge the SAB’s decision to place him on precautionary suspension.[8]

The commissioner found that the decision to place Mr. Long on precautionary suspension constituted of an unfair labour practice, because it was for a long period of time, and he was not given an opportunity to make representations. He was then awarded two months remuneration.[9]

SAB instituted a review application in terms of section 145 of the Act, and the Labour Court (“LC”) held that, when an employee is placed on precautionary suspension, it is not a requirement for them to be afforded an opportunity to make representations.[10] As a result, the LC held that the commissioner erred in his findings.

Aggrieved by the decision of the LC, Mr. Long filed a petition for leave to appeal the decision of the LC, however the Labour Appeals Court (“LAC”) refused the petition.[11]

Aggrieved by the decision of the LAC, Mr Long filed an application for leave to appeal the decision of the LC in the Constitutional Court. It is important to note that the issue before the apex court was not whether the decision by SAB to place Mr. Long on pre-cautionary suspension without affording him an opportunity to make representations constitute an unfair labour practice in terms of section 186 (2) (b) of the Act. But the issue was whether employees have a constitutional right to make representations before they are placed on precautionary suspension.[12]

The apex court held that employees do not have a constitutional right to be afforded an opportunity to make representations before they are placed on precautionary suspension.[13]

The blind spot

After the decision in Long was handed down, many employers excitedly stopped the practice of giving employees opportunities to make representations before being placed on precautionary suspension, much to the consternation of employees. However, there is a blind spot in Long that employers did not take heed of: the Long decision does not mean that employers are permitted to place employees on precautionary suspension without following their own policies, empowering legislation and terms of the employment contract.

Judge Van Niekerk clarified this position in the unreported case Mettler v Nelson Mandela Bay Municipality[14] where he clarified that when the right to make representations before being placed on precautionary suspension is provided in the employer’s policies, regulations governing the sector, or in the employment contract, then the employee must be afforded an opportunity to make representations.

Conclusion

The test on whether the employer may place an employee on precautionary suspension is low, however, the case of Long does not permit employers not to afford employees an opportunity to make representations before they are placed on pre-cautionary suspension when the employer’s policies, sectoral or relevant regulations and or the employment contract provides a right to the employee to make representations before being placed on precautionary suspension.

Therefore, the Long case does not give employers carte blanche to place employees on precautionary suspension without giving them the opportunity to make representations. Regard must always be given employer’s own policies, regulations governing the sector, or the employee’s employment contract when taking the decision to place the employee on precautionary suspension.

[1] Long v South African Breweries (Pty) Ltd and Others 2018 ZACC.

[2] Mogotlhe v Premier North West Province (2009) 30 ILJ 524 (LC) at para 39.

[3] Edumbe Municipality v Putini and Others (2020) 41 ILJ 891 (LAC) at para 45.

[4] Koka v Director-General: Provincial Administration, North West Government 1997 18 ILJ 18 1018 LC at para 14.

[5] Supra note 1 at para 4.

[6] Ibid at para 4.

[7] Ibid para 7.

[8] Ibid para 10.

[9] Ibid para 10.

[10] Ibid para 12.

[11] Ibid para 15.

[12] Ibid para 16.

[13] Ibid para 24.

[14] Mettler v Nelson Mandela Bay Municipality Case no: P 487/2018 (Delivered on 2 July 2019) (Not reportable).