Article supplied by Carmel Rickard
The Labour Court has just delivered a major new decision saying it is unlawful to misuse such leave in order to avoid going through proper dispute procedures. What’s more, members of the body agreeing to grant unlawful special leave may find themselves personally liable for the resulting legal and other costs.
The new decision cuts to the heart of one of the great scandals going hand in hand with failure of service delivery. There can be few taxpayers who aren’t enraged by how often officials are given lengthy fully-paid special leave during which time the public continues to pay for a job that isn’t done.
The case that might end this malpractice was brought by Antonie Willem Heyneke against the Umhlatuze Municipality (Richard’s Bay). At the ‘request’ of some elements of the council Heyneke, municipal manager of Umhlatuze, accepted to take special leave from the beginning of last October. (According to his contract, such leave could be taken to write exams, to participate in a provincial sports event and so on.)
When his leave continued indefinitely he told the municipality he wanted to go back to work. The council refused so Heyneke asked the court to reinstate him.
It turns out that Umhlatuze is riddled with factionalism and is divided along party lines on how to deal with Heyneke. Against this background, Labour Court judge Dhaya Pillay, who has been appointed to the High Court with effect from July, had to decide whether the decision to put Heyneke on special leave was lawful.
She held that in terms of his contract special leave granted to him would always have to be at his request or with his consent. It could not be imposed on him if he were unwilling.
Pillay said that at best Heyneke had agreed to special leave for a short time. Once he asked to return to work and was refused, however, the special leave was not authorized and his employment contract was breached.
The judge found there was an ulterior purpose behind the request that he take special leave. He was told that if he took it, ‘investigations could be conducted’ into certain matters, but after examining the reasons given and the subsequent sequence of events she said the purpose of the special leave was to suspend him pending misconduct proceedings.
‘The special leave is a façade …. Effectively, the municipality used a power aimed at benefiting employees as a weapon against the employee.’
It’s hard not to jump up and down with glee at some of her scathing comments.
For example, she held that it is not reasonable or in the public interest for a municipality to put an employee on fully-paid special leave for a long time, even where the employee agrees. This would be ‘against public interests and public policy for it can never be public policy to waste resources. Paying for services that are not rendered is wasteful.’
Thus, although Umhlatuze was experiencing a cash crisis it had paid Heyneke his salary of R70 000 a month for six months ‘without receiving any service in return.’
It was a prevalent practice, especially in public funded entities, for people to be given protracted leave on full pay pending investigations or disciplinary action. It was a sign of weak, indecisive management, impacting on taxpayers and shareholders. ‘This practice has to stop,’ she said.
But having made an important finding about the misuse of special leave, Pillay went on to make another equally stunning decision. For the first time since the enactment of the Municipal Finance Management Act of 2003, she interpreted and applied the section that says damages suffered because of the ‘deliberate … unlawful actions’ of political office-bearers or officials when performing a function of state may be recovered by a municipality.
In this case, damages from the unlawful special leave amounted to R420 000 in wasted salary, plus legal costs, and she ordered that council members investigate whether these costs should be recovered ‘from any political office bearers and officials’.
Even though they might be reluctant to recover losses from themselves, she warned, they were publicly accountable for their decisions; and if they didn’t act appropriately they could be ruled in contempt of court.
Reading the judgment I couldn’t help remember that lengthy special leave has recently been granted to several members of the judiciary whose alleged activities had become a public embarrassment.
Understandably, many people felt relieved that they would disappear from the public eye for a while. Next time however we’ll have to look more closely at whether this disappearing trick, however welcome, is actually legal.