MEC for Education, North West Provincial Government v Gradwell (JA58/10) [2012] ZALAC 8; [2012] 8 BLLR 747 (LAC); (2012) 33 ILJ 2033 (LAC) (25 April 2012)

Principle:

Dictates of fairness (procedural and substantive) apply to all suspensions equally, regardless of the form a particular suspension takes, be it employed as a holding operation or as a disciplinary sanction or penalty. But the proposition that all suspensions should be procedurally fair to avoid the stigma of an unfair labour practice requires qualification. When dealing with a holding operation suspension, as opposed to a suspension as a disciplinary sanction, the right to a hearing may legitimately be attenuated. An opportunity to make written representations showing cause why a precautionary suspension should not be implemented will ordinarily be acceptable and adequate compliance with the requirements of procedural fairness.

Facts:

Mr Gradwell made an urgent application to the Labour Court challenging his suspension from employment as the acting head of the Department of Education in the North West Provincial Government. The LC granted both a final order declaring his suspension unlawful and an interdict prohibiting the Premier of the North West Province from filling the post of head of department of the Department of Education in the province unless and until he was afforded an opportunity to be interviewed for the post.

The Department appealed to the LAC which overturned the LC judgment. In respect of the interdict, it appeared at the LAC that this had been granted by the LC on a mistaken understanding of the content of an agreement reached by counsel. In respect of the order that the suspension was unlawful, the LAC found that Mr Gradwell had a reasonable and fair opportunity to make representations in response to the allegations made against him. After the MEC agreed to an extension, Mr Gradwell had in effect been given about 18 hours in which to make representations before being suspended.

The LAC found that an opportunity to make written representations showing cause why a precautionary suspension should not be implemented will ordinarily be acceptable and adequate compliance with the requirements of procedural fairness.

Extract from the judgment:

(Murphy AJA)

[43]   The court a quo in all likelihood implicitly founded the right of the respondent to a hearing on the right of every employee in terms of section 185(b) of the LRA not to be subjected to unfair labour practices. Section 186(2) of the LRA defines an unfair labour practice to mean inter alia any unfair act or omission that arises between an employer and an employee involving the unfair suspension of an employee. Grogan, Workplace Law, suggests that the term "suspension" in section 186 (2) refers only to suspension imposed as a disciplinary penalty and not to the situation when an employer suspends an employee pending a disciplinary hearing. I assume his interpretation rests on the express wording of section 186(2)(b), which reads:

'the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee' (my emphasis).

The prohibition evidently targets unfair disciplinary action. That purpose, however, does not operate to exclude unfair acts or omissions in relation to precautionary suspensions. As Grogan rightly points out, insofar as a precautionary suspension invariably forms part of the procedure leading to disciplinary action it is inherently disciplinary in nature. Consequently, the dictates of fairness (procedural and substantive) apply to all suspensions equally, regardless of the form a particular suspension takes, be it employed as a holding operation or as a disciplinary sanction or penalty.

[44]   The proposition that all suspensions should be procedurally fair to avoid the stigma of an unfair labour practice, on the other hand, requires some qualification. Fairness by its nature is flexible. Ultimately, procedural fairness depends in each case upon the weighing and balancing of a range of factors including the nature of the decision, the rights, interests and expectations affected by it, the circumstances in which it is made, and the consequences resulting from it. When dealing with a holding operation suspension, as opposed to a suspension as a disciplinary sanction, the right to a hearing, or more accurately the standard of procedural fairness, may legitimately be attenuated, for three principal reasons. Firstly, as in the present case, precautionary suspensions tend to be on full pay with the consequence that the prejudice flowing from the action is significantly contained and minimised. Secondly, the period of suspension often will be (or at least should be) for a limited duration. The SMS Handbook for example imposes a 60 day limitation. And, thirdly, the purpose of the suspension - the protection of the integrity of the investigation into the alleged misconduct - risks being undermined by a requirement of an in depth preliminary investigation. Provided the safeguards of no loss of remuneration and a limited period of operation are in place, the balance of convenience in most instances will favour the employer. Therefore, an opportunity to make written representations showing cause why a precautionary suspension should not be implemented will ordinarily be acceptable and adequate compliance with the requirements of procedural fairness.

[45]   The right to a hearing prior to a precautionary suspension arises therefore not from the Constitution, PAJA or as an implied term of the contract of employment, but is a right located within the provisions of the LRA, the correlative of the duty on employers not to subject employees to unfair labour practices. That being the case, the right is a statutory right for which statutory remedies have been provided together with statutory mechanisms for resolving disputes in regard to those rights.