Home » General » Accepting Work While On Suspension [column]

Employee suspension refers to a situation whereby an employee is removed from place of work temporarily pending an investigation into alleged misconduct.

Some codes of conduct provide for suspension with pay and benefits while some provide for suspension without pay and benefits.

The latter is a bit harsher though. The practice of suspending employees pending an investigation into serious misconduct and the institution of formal disciplinary proceedings is a common practice in Zimbabwe.

Suspensions are usually initiated by the employer as a means to facilitate investigations into alleged misconduct and to reflect the seriousness of allegations, while the employee is away from the work place.

Generally they are initiated unilaterally by an employer before he investigates an allegation that has come to his attention.

A suspension is placing an employee for disciplinary reasons in a temporary status without duties, with or without pay and other benefits.

Generally we suspend to investigate, but I have seen certain instances whereby employers investigate to suspend.

During a period of suspension, the employee, while not required to attend work, should remain available to assist in the investigation, attend investigation or disciplinary meetings or deal with any work-related questions.

Further, if the suspension is lifted earlier than anticipated, the employee would be expected to return to work and execute their normal duties.

Where an employee is placed on suspension while a disciplinary investigation is carried out it is usual for the employer to aise him or her that he or she will not be allowed access to the workplace or colleagues.

The employer should be aware of the risk that the employee might try to influence colleagues who may be involved in the investigations as witnesses.

In practice, an employer cannot stop an employee contacting colleagues outside of work but should warn the employee that any attempt to influence colleagues involved in the investigations will be dealt with under the disciplinary process.

Some try to influence the witnesses positively while some use threats. The employer has a duty to guard against this.

Practically there are times when it will be necessary for the suspended employee to have access to the workplace.

Don’t be emotional but be reasonable and allow reasonable access. If the employee requests access to the workplace during the suspension, for example to retrieve personal property, the employer should assess the request and the reason for it and decide whether or not it is reasonable to allow the employee access.

It may be possible to allow the employee access to the workplace outside of working hours to avoid him or her coming into contact with colleagues.

The employer should also consider any requests by the employee to be allowed to contact colleagues if this is necessary in connection with preparing his or her response to the disciplinary case.

However, in this article, I will focus on whether one should seek and secure employment while on suspension and the legal repercussions of securing employment while on suspension in relation to the current employment contract.

The question of whether one should seek, secure and accept employment offer while on suspension was dealt with by Chief Justice Godfrey Chidyausiku in the matter between TelOne (Private) Limited v Zulu Judgment No. SC. 11004, Civil Appeal No. 903.

The respondent in this case was an employee of Tel-One at the relevant time. The employer suspended Zulu on allegations of misconduct on 21 February 1996.

The letter of suspension read as follows: “A cheque book went missing from security stores when you were in charge and responsible for the security stores at the material time. Three cheques from the cheque book totalling $44 289,03 were cashed with your assistance.

“The Corporation is suspecting you of misconduct in terms of the PTC Code of Conduct Part III Section 7(2), (3), (9) (a), (10) and (11) as read with the Conditions of Service (Employee) Rules Section 15(b),(c),(h),(i) and (j).

“You are hereby suspended from duty with effect from 21 February 1996.

Please note that the period of suspension is without pay or all other benefits. The onus is on you to meet your financial obligations such as medical aid and pension contributions normally covered by deductions from your salary.”

On September 1, 1997 Zulu found a job at Zimnat and was employed there until he was dismissed on February 12, 1998, when TelOne Pvt Ltd informed Zimnat that he was still their employee.

Thus, he worked at Zimnat for a period of approximately four-and-a-half months.

Zulu appealed to the Labour Officer and Senior Labour Officer without success and then approached the then Labour Relations Tribunal (now the Labour Court).

The Tribunal ruled in his favour. At the Tribunal TelOne conceded that the dismissal of Zulu was unlawful and was willing to pay damages as reinstatement was not possible at that point in time.

It is also apparent from the record that at the time the matter came before the Tribunal, Zulu was employed by BIMCO.

After making a concession that Zulu had been unlawfully dismissed, the parties requested the Tribunal to assess the damages payable to the Zulu.

The Tribunal ordered TelOne to pay Zulu his salary and benefits from February 21, 1996 to June 14, 1999 less the earnings from Zimnat.

TelOne was also ordered to pay damages calculated from June 14, 1999 to May 31, 2002 plus interest at the prescribed rate.

TelOne was dissatisfied with this assessment of damages and then appealed to the Supreme Court.

In addition to this, TelOne was arguing that Tribunal erred in holding that Zulu’s contract of employment with them subsisted until June 14, 1999 when he took up employment with BIMCO.

TelOne’s main argument was that the Zulu repudiated his contract of employment with them when he took up employment with Zimnat on September 1, 1997.

In his judgement the Supreme Court Judge ruled that the Tribunal failed to appreciate the distinction between an employee who is on suspension and an employee who has been dismissed, whether unlawfully or lawfully and the different legal obligations pertaining to the different employees.

An employee who is on suspension is under a legal obligation to avail himself for duty to his employer during the period of suspension and that if such employee takes employment during the period of suspension he repudiates his contract of employment, (see Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988 (1) ZLR 143 (S). In that case GUBBAY JA (as he then was) said at p 150: “The effect of informing an employee that he is suspended was considered by FEETHAM J in Gladstone v Thornton’s Garage, as follows at p 119: When an employee is “suspended” it appears to me that apart from any express instructions he must hold himself available to perform his duties if called upon though for the time being he is debarred from doing his work.

It appears to me that that is distinct from dismissal — the use of the term “suspended” is an indication that, while he is not to perform his duties, he must still remain bound to his employer under his contract of service (see also van der Merwe v Colonial Government (1904) 14 CTR 732 at 737 Boston Deep Sea Fishing and Ice Company v Ansell (1888) 39 ChD 339 at 352).

The obligation of an employee, who is placed under suspension to hold himself available to performing his duties if called upon to do so, is one which arises by operation of law (ex-lege).

It is of no consequence therefore that no provision in that regard is contained in the contract of service and it is not necessary for the employer at the time of suspension to so inform the employee.

An employee, who has been dismissed, whether lawfully or unlawfully, is under a different legal obligation from an employee who has been suspended.

A dismissed employee is under an obligation to mitigate his damages as quickly as possible and failure to do so might cause him to be denied damages, (See Ambali v Bata Shoe Co Ltd 1999 (1) ZLR 417 (S)).

It was then ruled that the Zulu repudiated his contract of employment with the TelOne on 1 September 1997, the date he accepted employment with ZIMNAT. He was therefore entitled to arrears of salary and benefits up to that date.

The principle that emerges from the above authorities is that an employee who is on suspension has a legal obligation to be available for employment by his employer.

He cannot take up employment while on suspension as that has the effect of terminating his previous employment.

On the other hand, an employee who has been dismissed is under an obligation to look for alternative employment almost immediately upon dismissal in order to mitigate his damages.

Therefore if you are on suspension, you are still bound by your contract, you are still an employee. You can seek but don’t secure employment.

Disclaimer: I do not accept any liability for any damages or losses suffered as a result of actions taken based on information contained herein. The information contained herein does not serve as alternative to legal aice. The views contained in this article are personal.

Taurai Musakaruka is Human Resources Practitioner. Feedback e-mail to tmusakaruka@gmail.com or tauraimusakaruka@yahoo.com

Source : The Herald