Reason for Suspension – Misconduct or Lockdown?

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Since lockdown started on 27 March 2020, CCMA commissioners have had to determine a variety of issues resulting from the lockdown.

In the matter of Bobotjane/Sebvest Financial Services Group /Sebvest Development Africa

(Pty) Ltd the CCMA commissioner had to determine whether the interruption of the applicant’s services constituted an unfair labour practice, given that the applicant believed he was suspended when his services were interrupted.

The facts were briefly that the applicant was employed as a personal driver by the respondent for the sole purpose of driving the respondent’s children to school and back.

When the schools closed during the lockdown, he was told that there was no longer any work for him “as from 4 May 2020 until further notice”.

The applicant referred an unfair labour practice to the CCMA, claiming that he was suspended “without cause” and sought 12 months’ compensation by way of relief.

The respondent’s version was that he did not have any alternative work for the applicant and because he was actually in the same boat as the applicant, he was not in a financial position to pay the applicant.

In terms of the principles in Special Investigating Unit v CCMA and others (JR5092014) [2017] ZALCJHB 127, the commissioner avoided awarding what was described by the Labour Court as “sympathy compensation”.

The commissioner found that section 186(2)(b) of the LRA made it clear that the an employee is only subjected to an unfair labour practice when he is suspended in circumstances where it appears that he allegedly committed misconduct, and therefore there is a direct and clear link between suspension and disciplinary action (short of dismissal).

The Commissioner found that the CCMA lacked the necessary jurisdiction to determine the matter in terms of section 186(2)(b), and concluded that he:

[31]… could not find any special protection for the applicant against the dire Covid-19 consequences under the auspices of the unfair labour practice jurisdiction in terms of the Labour Relations Act.

The rationale behind this decision is therefore that a suspension in terms of section 186(2)(b) of the LRA is linked to allegations of misconduct on the part of the employee and not to the interruption of services because lockdown prevented employers (and businesses) from generating an income.