SUSPENSION DOES NOT MEAN DISMISSAL FROM EMPLOYMENT | Matthias Ruziwa : HR Issues.
“An employee who is suspended is not dismissed from employment ipso facto. Suspension and dismissal are different though related concepts. Failure to serve a notice of removal of a suspension in terms of the Code is not necessarily an unfair conduct. Whether it is unfair, conduct will depend on the circumstances of the case.”In this article, the writer explores great lessons drawn from the matter between CIMAS Medical Aid Society v Tapiwa Nyandoro Supreme Court Judgement No. 6 of 2016.
The respondent was employed by the appellant as managing director for the Health Care Division. On July 23 2008 he was suspended from duty on allegations of misconduct for contravention of provisions of the Labour (National Employment Code of Conduct) Regulations S I 15/ 2006 which reads:
(a) Section 4(a): act or conduct or omission inconsistent with the express or implied conditions of service.
(b) Section 4(b): wilful disobedience of a lawful order:
The hearing officer appointed by the appellant, found the respondent not guilty of the charges. In his ruling he stated: “For the reasons set out above, I find the employee not guilty on both charges”.
After the respondent was acquitted of the charges, he wrote to the appellant requesting payment of money which he said would form part of a package to be agreed upon.
The respondent did not insist at that time on being taken back to work.
The appellant went ahead and deposited the money into the respondent’s bank account. The appellant did not respond to the respondent’s letter of what he suggested would be an exit package to be agreed upon by the parties. It did not make a counter-offer on the exit package.
While on suspension, the respondent was doing work for Graniteside Chemicals (Pvt) Ltd. It was however, argued on behalf of the respondent tht he was engaged by Graniteside Chemicals (Pvt) Ltd as a locum tenens.
After the respondent was found not guilty of the alleged misconduct for which he was suspended, the appellant did not act in terms of s 6 (2)(b) of the Code which provides that:
“(2) Upon serving the employee with the suspension letter in terms of subsection (1), the employer shall, within 14 working days investigate the matter and conduct a hearing into the alleged misconduct of the employee and, may according to the circumstances of the case —
(b) serve a notice, in writing, on the employee concerned removing the suspension and reinstating such employee if the grounds for suspension are not proved.” (the underlining is mine)
The respondent took the view that the appellant was not reinstating him because of the letter it had written to him indicating that it was considering reinstating him on the payroll.
He had interpreted the letter to mean that the appellant wanted to reinstate him in his former position. He approached a Labour Officer accusing the appellant of an unfair labour practice in that it had refused to reinstate him into his job.
The matter was referred to compulsory arbitration. The arbitrator found for the respondent and ordered the appellant to reinstate him in his former position without loss of salary and benefits.
The arbitrator also ordered payment of damages in lieu of reinstatement should the working relationship between the parties prove to be untenable.
The appellant appealed to the Labour Court and the respondent cross-appealed alleging that the arbitrator had erred in his computation of the damages in lieu of reinstatement. On February 28 2016, the Labour Court dismissed both the main appeal and the cross appeal and the appellant decided to appeal to the Supreme Court. I shall therefore list below important lessons that arise from the Supreme Court’s decision.
a) Whilst an employer is under an obligation in terms of s 6(2)(b) of the Code to investigate the allegations of misconduct levelled against an employee and conduct a disciplinary hearing within fourteen days following the employee’s suspension, the employer is not under an obligation to serve the employee with a notice of removal of the suspension after he or she is found not guilty of the alleged misconduct for which he or she was suspended.
The respondent must have been aware of what the appellant could have done. Whether the appellant decided to serve the respondent with the requisite notice depended on the circumstances of the case and the exercise of its discretion.
The appellant was not under an obligation to serve the notice on the respondent reinstating him to the job following his acquittal of the charges of misconduct if the circumstances of the case did not allow for such a reinstatement.
b) Failure to serve a notice of removal of a suspension in terms of s 6(2)(b) of the Code is not necessarily an unfair conduct. Whether it is unfair conduct will depend on the circumstances of the case.
The word reinstatement in s 6(2)(b) of the Code does not have the same meaning it has when it forms the content of an order directed at an employer following a finding that the employee was unfairly dismissed. In the case of the respondent, he had been suspended. He was not dismissed.
There had been no termination of the relationship of employment between the parties. Reinstatement to the job would have the limited meaning of removal of the suspension so that the employee could resume work. There cannot be a question of payment of damages in lieu of reinstatement.
The ordinary meaning of reinstatement is the restoration of a person in his or her former job with no loss of salary and benefits. See Chegutu Municipality v Manyora 1996 (1) ZLR 262(S), Blue Ribbon Foods Limited v Dube No & Anor 1993 (2) ZLR 146 (SC) and United Bottlers (Pvt) Ltd v Murwisi 1995 (1) ZLR 246 (SC).
c) An employee who is suspended is not dismissed from employment ipso facto. Suspension and dismissal are different though related concepts.
The respondent averted to being reinstated to his job in his submissions before the arbitrator. A suspended employee does not lose his employee status.
The respondent lost sight of the real issue and claimed the wrong thing.
The moment the arbitrator related to the concept of mitigation of damages he believed that the matter before him was one of unfair dismissal and yet the respondent had not been dismissed from employment.
Reinstatement is a remedy which is used to place an unfairly dismissed employee into a position he would have been had the unfair dismissal not been committed.
Reinstatement in its ordinary meaning suggests that the period of service between wrongful dismissal and resumption of service is deemed unbroken.
The arbitrator gave an order for reinstatement with an alternative of damages in lieu of reinstatement should reinstatement prove to be no longer an option.
He understood the issue as being that of reinstatement in the ordinary sense of the word. The arbitrator could not have made the order in the terms in which he made it if he did not consider that the respondent had been unfairly dismissed.
d) A suspended employee does not lose employment simply because he or she is suspended. He or she remains employed and can be called upon any time by the employer to perform work, United Bottlers v Kaduya 2006 (2) ZLR 150 (S).
If an employee who has been suspended and charged with an act of misconduct in terms of the Labour (National Employment Code of Conduct) Regulations is found not guilty and the employer refuses to lift the suspension, the remedy lies in the procedure for conciliation and compulsory arbitration.
The Supreme Court allowed the appeal to succeed citing that “the circumstances of the case show that the appellant did not act unfairly in not serving the respondent with a notice of removal of the suspension.
The respondent behaved in a manner that showed that he no longer regarded himself as the appellant’s employee.
Not only did he take employment with another company whilst on suspension, he wrote to the appellant soon after he was found not guilty of the alleged misconduct for which he had been suspended requesting for an advance payment of part of a severance package.
The arbitrator and the Labour Court failed to appreciate the fact that a wrong remedy was being pursued by the respondent.
Disclaimer: Opinions expressed herein are solely those of the author.
Matthias Ruziwa is an experienced and progressing Strategic Human Resource Practitioner based in the Midlands Province, City of Kwekwe.