Special leave or velvet-glove suspension? A trend in the public sector
In recent weeks, South Africa has witnessed two high-profile figures, the minister of police and the chief executive of the Road Accident Fund (RAF), being placed on what is termed 'special leave'.
Although cabinet ministers are not employees for the purposes of the Labour Relations Act, this raises the question of whether this concept of 'special leave' is just suspension dressed in a velvet glove or whether it carries a different meaning in law and in practice.
This article does not analyse the legality of, nor provide commentary on the 'special leave' imposed on the police minister and the RAF chief executive. Instead, it attempts to locate the concept of 'special leave' within the realm of labour law in South Africa.
Special leave v Suspension
Suspension refers to a temporary removal of an employee from their duties. Suspension in South Africa is typically divided into two categories: precautionary suspension and punitive suspension. A precautionary suspension is usually imposed when an employer is conducting an internal investigation that may lead to disciplinary proceedings. The aim is to safeguard the interests of the organisation by ensuring that the employee does not interfere with the investigation or operations.
A punitive suspension, by contrast, is a disciplinary measure taken against an employee found guilty of misconduct. It is less severe than dismissal but entails suspension without pay or benefits — the suspended employee does not receive a salary or benefits while away from work.
'Special leave', on the other hand, is not expressly provided for or defined in South African labour legislation. But it can be said that it is a form of leave granted by an employer to an employee, usually at the behest of the employee, and it can either be based on a policy or an employment contract. Like precautionary suspension and unlike punitive suspension, special leave is generally paid and the employee receives full benefits.
But, without a clear definition in legislation or case law, the concept of special leave can be misconstrued and, in some instances, used as means to (indirectly) suspend employees.
This was the case in
Sibanyoni v Speaker of the City of Mbombela and Others
. Here, the applicant, the chief financial officer of the City of Mbombela, approached the labour court on an urgent basis seeking to have the council's resolution to place her on 'special leave' declared unlawful and set aside. This followed a report accusing her of alleged misconduct and recommending that it be investigated.
The court found that the special leave as contemplated in the regulations can only be granted at the behest of an employee and there is no such concept as 'forced special leave'.
In reaching its decision, the court referred to other precedents, including
Heyneke v Umhlatuze Municipality
, where the court in dealing with the placement of a municipal manager on 'special leave' found: 'Special leave that is imposed on employees is effectively a suspension in the hope of subverting the residual unfair labour practice provisions of the Labour Relations Act No 66 of 1995 (LRA) and all the time and other constraints that accompany suspensions.'
Likewise, in
South African Municipal Workers Union obo Matola v Mbombela Local Municipality
, it was held that what the respondent labelled as 'special leave' resolution was nothing but the suspension of the applicant in that case.
In the end, the court in
Sibanyoni
found that the special leave imposed by an employer is essentially a euphemism for a precautionary suspension, to create an impression that the provisions were complied with. Whether the special leave is imposed for a prolonged period or short period is irrelevant, because it remains a suspension regardless.
As a result, the court declared the resolution adopted by the council to place the chief financial officer on special leave unlawful, set it aside and ordered her reinstatement.
While special leave and suspension are theoretically distinct principles, the growing use of special leave to suspend employees blurs the lines between the two.
Accordingly, when an employer considers placing an employee on 'special leave', it must do so in a manner consistent with the employment contract or the workplace policy regulating such leave.
Failure to do so may result in a finding that the special leave was, in fact, a suspension, and that the employer used the term to mask procedural unfairness and evade legal obligations. If the employer intends to suspend the employee, it should follow the legal prescripts governing suspensions to avoid exposure to unfair labour practice claims.
Andile Mphale is a dispute resolution attorney at Lebea Inc Attorneys.
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