21 June 2010

Suspension v Special Leave: a rose by any other name...?

In Heyneke v Umhlatuze Municipality [Case no. D908/090], yet another public employer has come under the spotlight for conduct that, in the words of the Labour Court, 'typifies how not to conduct investigations and discipline'.

Heyneke was employed as the Municipal Manager of Umhlatuze Municipality. During September 2009, the Municipality was requested to place Heyneke on paid leave pending an investigation into the causes of a cash crisis and his decision to appoint certain personnel. Heyneke agreed to be placed on special leave, provided that the leave was of limited duration.

At a special meeting, certain of Heyneke's decisions were declared unlawful and invalid, and it was resolved to place him on paid leave, despite Heyneke not being charged with misconduct immediately. After unsuccessfully requesting to return to work, Heyneke approached the Labour Court (the Court) for a declarator and claimed reinstatement on the basis that his "special leave" was in fact a suspension pending disciplinary action and constituted a breach of his conditions of employment.

In turn, the Municipality argued that Heyneke had consented to the special leave, which is authorised by the Municipal Systems Act 32 of 2000, its regulations and the Municipality's leave policy. The purpose of the special leave was to investigate the abovementioned issues. At the time of placing Heyneke on special leave, it had not contemplated charging him for misconduct. The Municipality accordingly denied that its actions were motivated by an ulterior purpose.

In addressing the issue, the Court analysed the concept of 'special leave' against current legislation, municipal regulations and the Municipality's policies. It found that 'special leave' was couched as an employee entitlement, rather than a form of leave that is imposed on an employee. To impose it on an employee would, in effect, be a suspension. The Municipality was, therefore, required to prove that the special leave was at Heyneke's instance, with his consent and that the adoption of the resolution to place him on special leave was made in good faith.

The Court held that the moment Heyneke requested to return to work, the special leave ceased to be with Heyneke's consent and thus amounted to a breach of his employment contract. It was also evident that the Municipality decided to place Heyneke on special leave before it adopted the terms of reference of its investigation into his conduct. This, the Court stated, violated the general principle that employers ought to formulate their reasons before they make decisions.

In its view, the special leave was a 'façade' for Heyneke's suspension pending disciplinary action. This suggested an ulterior motive. The Court held that no municipality, acting reasonably and in the public interest can put an employee on special leave for a long duration - not even if the employee consents to it.

Public employers are therefore cautioned that protracted periods of leave or suspension on full pay pending disciplinary action or investigations into employees' conduct are considered to be a sign of 'weak [and] indecisive management' by the Court and a strong stance will be taken against public employers whose actions impact on both taxpayers and stakeholders.

Gavin Stansfield, Director, Employment Law
Pranisha Maharaj, Associate, Employment Law

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