Business: Warning:Managers Keep on Your Toes – Big Brother is Watching
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Well, one would be wrong. There is still room for surprise if not amazement, says Martin Oosthuizen partner in Shepstone and Wylie Attorneys referring to a, recently appointed and respected, Labour Court Judge’s finding that there is nothing unlawful about a trade union demanding that senior members of management be suspended pending disciplinary proceedings, upon the pain of a strike.
What is more surprising is that his judgment in the case of the City of Johannesburg Metropolitan Municipality and Samwu and Other 2009 5BLLR 431 (LC), means that the initial demand does not have to be qualified by the demanded suspension being in accordance with fair procedure. The* *qualification can now be made by the trade union on the eve of the threatened strike in the answering affidavit to a startled employer’s abortive interdict application.
The importance of the City of Johannesburg Metropolitan Municipality and Samwu case is that it deals with trade union demands that many might regard as outrageous. Yet, the court held that they were lawful for the purpose of a protected strike.
The case is also important because it sets out the requirements for "a fair preventative suspension". Many managers believe that they have a right to suspend an employee pending a disciplinary enquiry provided the employee remains on full pay. That belief is not correct.
The judgment states that there are three requirements for a fair preventative suspension before a disciplinary hearing. "The first* *is that the employer must be satisfied that the employee is alleged to have committed a serious offence. The second requirement is that the employer must establish that the continued presence of the employee at the work place might jeopardize any investigation into the alleged misconduct, or endanger the wellbeing or safety of any person or property. The third is that the employee must be given a hearing in the form of an opportunity to make representations before a decision to suspend is taken".
Thus, it is now established that there must be valid reasons for a suspension and fair procedure must be followed before a suspension is implemented.
This all means that if a trade union suspects a senior manager of misconduct there should be no incredulousness if his/her continued presence at work results in an unqualified
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