The recent decision by the Road Accident Fund ("RAF") to rescind its initial decision to place its CEO on special leave, replacing it with a precautionary suspension, has raised more than just eyebrows. It has also brought into sharp focus the confusion that sometimes arises when employers are faced with a choice of whether to implement one or the other.
Precautionary suspension is usually unilaterally imposed when an employer reasonably believes that an employee might have breached a workplace rule that requires investigation, or which may result in disciplinary action. It is not punitive but precautionary in nature. It is imposed for reasons of good administration, often to safeguard the integrity of an investigation or to protect witnesses. There is no requirement for an employee to be provided with the opportunity to make representations before being placed on precautionary suspension, unless the employer has imposed such a duty upon itself through its procedures or by agreement with unions.
Special leave, on the other hand, is generally granted with the agreement of the employee and is sometimes at the employee's behest. It generally serves the same purpose as a precautionary suspension, except that it does not carry with it the stigma associated with being placed on precautionary suspension. It is a case of a rose by any other name smelling as sweet. As the Labour Court stated in Sibanyoni v Speaker of the City of Mbombela and others [2024] JOL 66313 (LC):
"Special leave imposed by an employer is essentially a euphemism for a precautionary suspension... It is irrelevant whether special leave is imposed for a prolonged or short period. It remains a suspension regardless..."
In Heyneke v Umhlatuze Municipality (Heyneke) (2010) 31 ILJ 2608 (LC), the Court, when dealing with the placement of a Municipal Manager on 'special leave', had the following to say:
"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.
To discharge its onus of proving the... lawfulness of the special leave the municipality has to show that the special leave was at all times at the instance of the employee and with his consent, that it was not imposed on him, that exceptional circumstances existed and that the special leave resolution was adopted in good faith, and that it was rational, reasonable, proportionate and in the public interest." (own emphasis)
Because special leave is treated as a form of precautionary suspension, it is essential that employers comply with the requirements that govern suspensions. Even if the term special leave is used, the underlying nature of the action, removing an employee from the workplace pending an investigation, triggers the same legal obligations as a precautionary suspension. The terms of a suspension that typically apply to precautionary suspension also apply when an employee is placed on special leave, such as, for example, being barred from the workplace and contacting fellow employees.
The RAF matter serves as a timely reminder of how crucial it is for employers to use correct legal procedures when removing an employee from the workplace as a precaution pending an investigation or disciplinary action. While special leave might appear to be a neutral or softer option, it cannot be imposed unilaterally without consent; doing so may render the action unlawful. The cost of misunderstanding these concepts can be steep.
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