Facts regarding the precautionary suspension of Professor Ebrahim Variava and the reaction of respective members of the Health Profession
The North West Department of Health has noted with concerns reaction of some members of the health profession and some speculations on public platforms regarding the precautionary suspension of Professor Ebrahim Variawa. The Department wish to set the record straight on this matter.
On Friday, 12 June 2020, the North West Department of Health (NWDoH) took a decision, in accordance with the Labour Relations Act, 1995 (and its regulations and guidelines), the Public Service Act, 1997 (and its codes), and applicable case law, to precautionarily suspend its employee, Professor Ebrahim Variava (Prof. Variava).
A precautionary suspension is the suspension, by an employer, of an employee pending an investigation of alleged misconduct, which may lead to the laying of formal charges and a disciplinary hearing; or to the employer deciding not to take action. Precautionary suspensions protect the rights of both employees and employers and play an important role in the labour relations process.
The precautionary suspension is not a disciplinary measure in itself, and it is therefore not required that the employee being precautionarily suspended be given a hearing before the suspension (Long v South African Breweries (Pty) Ltd and Others; Long v South African Breweries (Pty) Ltd and Others (CCT61/18) [2019] ZACC 7).
While employees retain full pay and all benefits, employers are able to properly investigate suspected misconduct, without the fear of the employee interfering with the investigation. As part of the internal investigation, an employee placed on precautionary suspension will have the opportunity to respond to the allegations of misconduct levelled against them.
The precautionary suspension is thus purely intended to ensure the integrity of the investigation. Ensuring that internal investigations can take place without prejudice or interference, and that the principles of justice and the rule of law are upheld and is in the interests of all parties involved in cases of suspected misconduct.
It is only if the findings of an internal investigation substantiate the allegations of misconduct that an employee will be formally charged, and disciplinary action taken. When disciplinary hearings take place, the employee may be found innocent of any charges or, if guilty, may, amongst other sanctions, face punitive suspension, which has implications for the pay and benefits of the employee, or dismissal. Hearings of this nature are of fundamental importance to the rule of law. The employee is given an opportunity to rebut the evidence adduced by the employer to substantiate the charges, by cross-examining the witnesses and adducing evidence in order to exonerate themselves. The onus to prove the charges rests squarely with the employer.
Thus, Prof. Variava was placed on precautionary suspension in order to protect the rights of all parties affected. An internal investigation will take place, as quickly as is practicable. No prejudice to the rights of Prof. Variava arose from his precautionary suspension. In cases where misconduct is suspected, it is right and proper that these are properly investigated, without interference.
It is also important to note that contrary to assumptions made in the media, Prof. Variava is not the lead physician on COVID-19 in the North West Province.
The NWDoH is however well aware of the contribution Prof. Variava has made/makes to the work of the Department, and of the structures and professionals within the NWDoH who collaboratively ensure that the right to healthcare is upheld within the Province.
However, while employees may be exemplary in some regards, and be acknowledged and lauded for it, they may fall short of expected standards in other regards. Where the latter occurs, the employee should be held to account.
In cases where misconduct is suspected, it is appropriate, and also customary, for the investigation, for any charges that result, and for any counterevidence to focus narrowly on the issues relevant to the alleged misconduct. Thus, while we appreciate the highlighting of Prof. Variava’s academic and practical successes, by Professors Martinson, Gray, Madhi and Doctor McCarthy, over the course of the week, the information is irrelevant to the alleged misconduct. We do however welcome information and evidence relevant to the alleged misconduct.
Our democratic South Africa is founded on, amongst others, the supremacy of the Constitution, the rule of law, equality, accountability, responsiveness and openness, and anyone attempting to intervene in the matter involving Prof. Variava must observe these values.
In conclusion, Prof. Variava and any other employee on precautionary suspension and/or under investigation remain innocent until proven otherwise.
Enquiries:
Tebogo Lekgethwane, Departmental Spokesperson
Cell: 067 422 7763
E-mail: tlekgethwane@nwpg.gov.za
