Long v South African Breweries (Pty) Ltd and Others; Long v South African Breweries (Pty) Ltd and Others (CCT61/18) [2019] ZACC 7 (19 February 2019)

Principle:

An employer is not required to give an employee an opportunity to make representations prior to a precautionary suspension. A precautionary suspension is not a disciplinary measure and consequently, the requirements relating to fair disciplinary action under the LRA do not apply.

Facts:

Mr Long was employed by South African Breweries as its district manager for the Border District. He was responsible for legal compliance in respect of SAB's operations in that area, including the requirements pertaining to a fleet of vehicles. On 10 May 2013, a trailer owned by SAB was involved in a fatal accident. The vehicle, before the accident, was in a state of disrepair and unlicensed. This accident prompted an investigation by SAB into the vehicle fleet. It turned out that many of the vehicles for which Mr Long was responsible were not roadworthy and had invalid licence discs. After further investigation and a disciplinary hearing Mr Long was found guilty of dereliction of duties, gross negligence and bringing the company name into disrepute. He was dismissed on 14 October 2013. Mr Long had also been suspended from work from the time the investigations began until he was dismissed.

Two arbitrations followed in the CCMA, the first relating to Mr Long's suspension prior to dismissal and the second dealing with the fairness of his dismissal. The arbitrator held that Mr Long's suspension constituted an unfair labour practice because Mr Long had not been given a hearing before his suspension and the suspension was unreasonably long. The arbitrator awarded compensation equivalent to two months' remuneration. In the second arbitration, the arbitrator held that Mr Long had been unfairly dismissed because the illegalities regarding the vehicles did not fall within his responsibility. The arbitrator ordered that SAB reinstate Mr Long.

SAB reviewed both arbitration awards before the Labour Court. Regarding the first arbitration, the Labour Court held that where a suspension is precautionary and with full salary, as in this case, there is no requirement that an employee be given an opportunity to make representations. The Labour Court set aside the arbitrator's finding that the suspension was an unfair labour practice. As for the second arbitration, the Labour Court held that Mr Long had been guilty of dereliction of duty. It held that the arbitrator had come to the contrary conclusion by irrationally and improperly evaluating the evidence. The arbitrator's award was set aside and substituted with an order declaring Mr Long's dismissal to be fair. The Labour Court ordered that Mr Long pay SAB's costs in both review applications.

The Labour Appeal Court refused Mr Long's application for leave to appeal, and these matters wound their way to the ConCourt. In a unanimous judgment, the ConCourt confirmed that an employer is not required to give an employee an opportunity to make representations before a precautionary suspension. The ConCourt further held that the LC was correct in holding that the dismissal had been fair and that Mr Long should not be reinstated. The ConCourt did however find that in labour matters costs do not ordinarily follow the result, and that the LC failed to justify its adverse costs order. The costs order was therefore set aside.

Extract from the judgment:

(Theron J)

[23]   This case concerns fair labour practices in terms of section 23 of the Constitution and specifically whether there is a requirement for a pre-suspension hearing in the case of a precautionary suspension. This Court's jurisdiction is engaged.

[24]   In respect of the merits, 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 applicant was a precautionary measure, not a disciplinary one. This is supported by Mogale, Mashego and Gradwell. Consequently, the requirements relating to fair disciplinary action under the 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.

[25]   In determining whether the precautionary suspension was permissible, the Labour Court reasoned that the fairness of the suspension is determined by assessing first, whether there is a fair reason for suspension and secondly, whether it prejudices the employee. The finding that the suspension was for a fair reason, namely for an investigation to take place, cannot be faulted. Generally where the suspension is on full pay, cognisable prejudice will be ameliorated. The Labour Court's finding that the suspension was precautionary and did not materially prejudice the applicant, even if there was no opportunity for pre-suspension representations, is sound.