DEEMED DISMISSALS AND SUSPENSIONS IN THE PUBLIC SECTOR Grootboom v National Prosecuting Authority (2014) ILJ 121 (CC)

Abstract

Two forms of suspension are known in South African law, namely, punitive and precautionary suspensions. Punitive suspensions are given as a form of a disciplinary sanction, while precautionary suspensions are effected pending an investigation. In the latter case, the suspension allows the employer time and space to conduct an investigation and to prevent the employee from tampering with the enquiry. Whether the suspension culminates in the employee’s dismissal or reinstatement, the LRA demands that the employee be treated fairly as an unfair suspension may constitute an unfair labour practice in terms of section 186(2)(b) of the Labour Relations Act (the LRA).
In case of a dismissal the LRA requires that a dismissal must be both substantively and procedurally fair. With regard to the procedural fairness requirement, the Code of Good Practice (Chapter 8 of the LRA) suggests that the employer hold an enquiry to determine whether there is a ground or grounds for dismissal. The enquiry does not have to be formal but the employer must inform the employee about the allegations and give such employee an opportunity to state a case in response. However, the Code mentions that in exceptional circumstances the employer can dispense with pre-dismissal procedures, if that employer is reasonably unable to follow these guidelines. The Public Service Act 103 of 1994 (PSA) is an example of legislation that allows employers to dispense with the procedural guidelines of the Code, citing the employee’s unauthorized absence as an exceptional circumstance. Section 17(3)(a)(i) of the PSA states that a public-service employee who absents himself or herself from official duties without permission from of his or her head of department shall be deemed to have been discharged from the public service on account of misconduct. Section 17(3)(b) affords an opportunity to employees so discharged to make representations to their employers, showing good cause why they should be reinstated. Section 14(1)(a) of the Employment of Educators Act 76 of 1998 (EEA) contains provisions similar to those of section17(3) of the PSA, however, these apply only to educators.
One can probably take the right to make representations mentioned above as an equivalent of the right to procedural fairness in the LRA, and also as a measure of complying with the guidelines stipulated in the Code. However, the right to make representations is distinct from the procedure under the LRA because it does not take effect unless invoked by the employee. Since the enactment of the PSA and the EEA, the position of suspended employees has been uncertain. The Constitutional Court in Grootboom v National Prosecuting Authority ((2014) ILJ 121 (CC)) dealt with deemed dismissals in the PSA and the EEA and the extent to which the provisions of these Acts can apply to suspended employees in the public sector. These issues are explored in this case note.