Suspending an Employee Pending a Disciplinary Hearing: What South African Employers Need to Know

When serious misconduct surfaces, many employers want the employee out of the workplace immediately. South African labour law allows that, but only in a specific form: a precautionary suspension on full pay, for a good reason, for as short a time as possible. Get the form wrong and the suspension itself becomes an unfair labour practice, often before the disciplinary hearing has even started.

Precautionary suspension vs punitive suspension

The law draws a sharp line between two very different things that employers loosely call "suspension". A precautionary suspension is a temporary, administrative step taken while an allegation is investigated or a hearing is arranged. It is not a finding of guilt and it is not a penalty. A punitive suspension (suspension without pay as a sanction) is a disciplinary outcome imposed after a fair hearing has found the employee guilty.

Almost every dispute in this area comes from employers blurring the two — for example, sending someone home without pay "until we sort this out". That is a sanction imposed before any hearing, and it is very difficult to defend.

What the law says

Section 186(2)(b) of the Labour Relations Act (LRA) lists the unfair suspension of an employee as an unfair labour practice. An employee who believes a suspension is unfair can refer a dispute to the CCMA or the relevant bargaining council within 90 days, and an arbitrator can order the suspension lifted and award compensation.

The courts have set out the core principles. In Long v South African Breweries (2019), the Constitutional Court confirmed that a precautionary suspension is not a disciplinary sanction, so the employer is not obliged to hold a hearing before imposing it. But the Court also stressed that the suspension must still be fair: there must be a fair reason for it, and it should not unduly prejudice the employee. Earlier Labour Court decisions made the same point — suspension on full pay is acceptable where the employer reasonably believes the employee's presence could interfere with the investigation or put people or property at risk.

The Code of Good Practice: Dismissal likewise recognises that an employer may suspend an employee on full pay pending an investigation or hearing. Nothing in the LRA or the Basic Conditions of Employment Act (BCEA) permits withholding pay during a precautionary suspension.

When is suspension justified?

Suspension should never be automatic just because a charge is serious. Ask whether the employee's continued presence at work creates a real risk. Typical justifications include:

• A realistic risk that the employee will tamper with evidence, delete records or access systems relevant to the investigation.
• A risk that the employee will intimidate or influence witnesses, particularly subordinates.
• A risk to the safety of colleagues, customers or the public (for example, alleged assault or serious safety violations).
• A risk of further losses where the allegation involves theft, fraud or dishonesty in a position of trust.
• A breakdown in the working relationship so severe that normal operations cannot continue while the matter is pending.

How to suspend fairly: a practical checklist

Even though a hearing is not required before a precautionary suspension, following a simple, documented process makes the suspension far easier to defend if it is challenged. Consider inviting brief representations from the employee where time allows — it costs little and demonstrates fairness.

• Confirm there is a genuine allegation of serious misconduct and a concrete reason why the employee must be removed from the workplace.
• Issue a written suspension letter stating that the suspension is precautionary, not a sanction, and that it is on full pay and benefits.
• Set out the employee's conditions: not to enter the premises, contact witnesses or access systems without permission, and to remain available during working hours.
• Give an expected time frame and name a contact person for queries.
• Diarise the investigation and hearing dates immediately so the suspension does not drift.
• Review the suspension regularly and lift it if the reason for it falls away.

Keep it short

Lengthy suspensions are one of the most common reasons employers lose unfair labour practice disputes. There is no fixed statutory maximum for the private sector (some public-service and bargaining council agreements do set limits, often around 60 days), but arbitrators consistently criticise employers who leave employees at home for months with no charge sheet and no hearing date. A suspended employee suffers reputational harm, loses skills and is left in limbo — even on full pay.

As a rule of thumb, aim to finalise the investigation and convene the hearing within a few weeks. If there is a genuine reason for delay, such as a complex forensic audit, tell the employee in writing and explain why. Our guide on running a disciplinary hearing sets out how to move from charge sheet to outcome efficiently.

Suspension without pay as a sanction

Unpaid suspension can be a legitimate outcome of a disciplinary hearing, usually as an alternative to dismissal where dismissal would otherwise be justified. Because it involves a deduction from remuneration, it should be recorded in the disciplinary code or agreed to in writing by the employee, in line with section 34 of the BCEA. It must also be for a defined, reasonable period.

What employers cannot do is impose unpaid suspension up front, before guilt has been established. That amounts to punishing the employee without a hearing and is likely to be found unfair.

Common mistakes that turn a suspension into a dispute

The same errors appear repeatedly in CCMA referrals: stopping salary during the suspension; suspending without any written reason; suspending for minor misconduct that poses no risk; leaving the employee suspended indefinitely; and using suspension as a way to push someone to resign, which can also found a constructive dismissal claim. Inconsistency is another trap — suspending one employee but not another facing the same allegation invites a challenge.

If a suspension has already been challenged, or you are unsure whether your process will hold up, professional guidance early on is far cheaper than an arbitration award. Ardent Labour Group assists employers with suspensions, disciplinary processes and CCMA representation.

Frequently asked questions

Can an employer suspend an employee without pay pending a disciplinary hearing?

No. A precautionary suspension pending a hearing must be on full pay and benefits. Unpaid suspension is only permissible as a sanction after a fair hearing, and then usually as an alternative to dismissal.

Does an employee have to be given a hearing before being suspended?

Not for a precautionary suspension. The Constitutional Court has confirmed that it is not a disciplinary sanction, so no pre-suspension hearing is required. The suspension must still be for a fair reason and should not unduly prejudice the employee.

How long can a precautionary suspension last in South Africa?

There is no fixed statutory limit in the private sector, although some collective agreements set one. The suspension should be as short as reasonably possible — typically a matter of weeks — and lengthy, unexplained delays are regularly found to be unfair.

Can a suspended employee take the employer to the CCMA?

Yes. Unfair suspension is an unfair labour practice under section 186(2)(b) of the LRA, and the employee may refer a dispute to the CCMA or bargaining council within 90 days.

This article is general information on South African labour law and is not legal advice on your specific situation. Speak to us about your facts.