Suspension of an Employee: Legal Insights and Best Practices

1. Introduction

Suspension of an employee is a critical tool available to employers, often used to address allegations of misconduct or to facilitate investigations without employee’s interference. Understanding the legal framework and implications of suspending an employee is essential to avoid potential legal repercussions. In this article, we explore the dynamics of employee suspension, referencing the case of Tassia Catholic Primary & Nursery School v. Florence Kanini Employment and Labour Relations Appeal No. E201 of 2022) to provide practical insights.

1. Understanding Employee Suspension

Suspension can be broadly categorized into two types:

1. Administrative Suspension: Used to facilitate investigations into the employee’s conduct, preventing them from interfering with the process.
2. Disciplinary Suspension: Applied as a punitive measure following the conclusion of a disciplinary process.

Both types of suspension must be handled with care and reasonableness to ensure they do not result in claims of constructive dismissal or unfair termination.

• Case Study: Tassia Catholic Primary & Nursery School v. Florence Kanini
  • At the Trial Court

In this case, Florence Kanini, the Respondent, was employed as a cook by Tassia Catholic Primary & Nursery School. Due to her health issues, she frequently sought medical attention. On 3^rd July 2019, she requested permission to visit her doctor, which was denied due to the school’s busy schedule. Despite this, Kanini left for her appointment, which led to her suspension the following day.

Kanini’s suspension was indefinite and without pay. This led her to seek intervention from human rights defenders and subsequently file a lawsuit for unfair termination. The trial court found the suspension amounted to constructive termination, as it was indefinite, without pay, and lacked a clear basis or timeline for resolution.

1. An the Appelate Court

The Appellant (school) contested the trial court’s decision, which had found the indefinite suspension of the Respondent to be unfair and akin to constructive dismissal. The trial court had awarded Kanini compensation for unfair termination, salary for days worked in July 2019, and pay in lieu of notice. The Appellant argued that the suspension was justified and not a termination, seeking to overturn the lower court’s decision.

The Employment and Labour Relations Court upheld the trial court’s ruling, agreeing that the indefinite suspension without pay constituted constructive dismissal. The appellate court emphasized that the suspension lacked a clear reason and duration, rendering it unreasonable. As a result, the court affirmed the compensation awarded to Kanini.

• Key Legal Considerations

For employers seeking to exercise their right to suspend an employee either for administrative or disciplinary purposes, they should consider the following:

1. Justification and Communication: The case highlighted the necessity for employers to clearly state the reasons for suspension. The Employment and Labour Relations Court found that the Appellant’s suspension letter to Kanini was vague and did not specify the reason for the suspension or its duration, rendering the action arbitrary and unreasonable.

•  Duration and Pay: Indefinite suspension, especially without pay, can be construed as constructive dismissal. Employers must ensure that suspensions are for a definite period and, unless otherwise specified in the employment contract, should be with pay. The court referenced the Court of Appeal case of Mutwol v Moi University (Civil Appeal 118 of 2019) to emphasize that prolonged or indefinite suspensions can amount to constructive dismissal.

•  Fairness and Good Faith: Employers are expected to act in good faith and fairness when deciding to suspend an employee. The decision should protect legitimate business interests and not be used whimsically. In the Canadian case of Cabiakman v. Industrial Alliance Life Insurance Co. (2004), it was established that administrative suspensions must be necessary, fair, and typically with pay.

• Best Practices for Employers

Concomitantly, the employer should consider the following best practices to minimize exposure to legal liability and ensure they promote constitutionalism by not violating, infringing, or threatening the employee’s constitutional right to fair labor practices.

1. Establish Clear Policies: Ensure that the employment contract or company policy clearly outlines the circumstances under which suspension can occur, the process to be followed, and the rights of the employee.

2. Document Everything: Keep detailed records of all communications and actions taken regarding the suspension to provide a clear trail of the decision-making process.
3. Communicate Clearly: Provide the employee with a written notice of suspension that details the reasons, duration, and whether it is with or without pay (typically as provided for either in the contract of employment or Human Resource Policies).

Conclusion

Suspending an employee is a serious labor action with significant legal implications. Employers must conduct this process carefully and reasonably, ensuring that they adhere to legal standards and maintain fair treatment of employees considering fair labor practices and complementary statutory rights. Additionally, employers must exercise the power to suspend sparingly and with justifiable reasons, ensuring that the process is transparent and fair to avoid claims of constructive dismissal. Finally, for employees, understanding your rights regarding suspension can empower you to seek redress if unfairly treated in the workplace.

DisclaimerThis article is for informational purposes only and does not constitute legal advice. For specific legal guidance on employment disputes, redundancy, unfair termination, wrongful dismissal, summary dismissal, drafting and reviewing employment contracts, suspensions and interdictions,employment contract drafting and review, or any other labor-related dispute, please contact us.