Suspension in employment law terms refers to a disciplinary related measure whereby an employee is sent away from work for a specific period of time with or without pay.
Suspension may be of two kinds; it may be imposed either as a precautionary measure to enable the employer to carry out investigations pertaining to a suspected misconduct pending disciplinary action or as a form of disciplinary penalty. In both instances, it is imperative that the letter of suspension specify the reasons for the suspension, terms of suspension (whether it is with pay or without pay and benefits) and the duration of the suspension.
Under common law, unilateral suspension of either type does not relieve the employer of the duty to pay the employer. However, through legislative intervention, mostmodern-day codes of conduct provide for suspension from employment without pay or benefits. The Labour (National Employment Code of Conduct) Regulations,2006. (S.I 15 of 2006) which is the model code provides as follows in Section 6(1) as part of the disciplinary procedure;
“Where an employer has good cause to believe that an employee has committed a misconduct mentioned in Section 4, the employer may suspend such employee with or without pay and benefits and shall forthwith serve the employee with a letter of suspension with reasons and grounds of suspension”
Similarly, the Public Service Regulations (S.I 1 of 2000) which covers members of the civil service in Section 48(1) provides as follows;
“A disciplinary authority may at any time, by written notice, suspend from service a member who is suspected of misconduct or is subject to criminal investigation or prosecution if his continued attendance at work or continued performance of his duties or service, as the case may be, would be conducive to unbecoming or indecorous behaviour or further instances of misconduct…”
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, supra at 119. This is what was said:
‘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.’
In Tel One (Pvt) Ltd v Kumuyani Zulu SC 110/04 it was underscored that 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. It is of no consequence therefore that no provision in that regard is contained in the contract of employment; and it is not necessary for the employer at the time of suspension to so inform the employee of that obligation.
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 by way of repudiation.
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