POPCRU and Another v Department of Correctional Services and Another (D642/15) [2016] ZALCD 25; (2017) 38 ILJ 964 (LC) (23 November 2016)

POPCRU and Another v Department of Correctional Services and Another (D642/15) [2016] ZALCD 25; (2017) 38 ILJ 964 (LC) (23 November 2016)

The court held that the employer's failure to respond to the application for temporary incapacity leave within the prescribed 30 working days does not entitle the employee to such leave. Payments made during the period pending investigation are conditional and do not harden into an entitlement after the lapse of the investigation period. The applicant assumed the risk that his application might not be granted, as clearly indicated in the PILIR policy and application notes. Section 38 of the Public Service Act applies, as the applicant received remuneration not due to him for periods of unapproved leave, and the employer is entitled to recover such amounts by salary deduction. The court...

Citation
[2016] ZALCD 25
Parties
Applicant: POPCRU; Applicant: Lindani Earl Emmanuel Mbongwa; Respondent: Department of Correctional Services; Respondent: Minister of Correctional Services
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
23 November 2016
Case Number
D642/15
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with no order as to costs.
Judges
Whitcher
Legal Topics
Temporary Incapacity Leave, Public Service Act, Ministerial Determination, Salary Deductions, Collective Agreement, Retrospective Effect
Labour Law Temporary Incapacity Leave Public Service Act Ministerial Determination Salary Deductions Collective Agreement Retrospective Effect

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Parties

POPCRU

Applicant

Lindani Earl Emmanuel Mbongwa

Applicant

Department of Correctional Services

Respondent

Minister of Correctional Services

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the employer's failure to respond to an application for temporary incapacity leave within 30 working days entitles the employee to such leave.
  2. 2 Whether salary deductions made after delayed refusal of temporary incapacity leave are lawful.
  3. 3 Whether section 38 of the Public Service Act applies to recover remuneration paid during unapproved leave.

Ratio Decidendi

The court held that the employer's failure to respond to the application for temporary incapacity leave within the prescribed 30 working days does not entitle the employee to such leave. Payments made during the period pending investigation are conditional and do not harden into an entitlement after the lapse of the investigation period. The applicant assumed the risk that his application might not be granted, as clearly indicated in the PILIR policy and application notes. Section 38 of the Public Service Act applies, as the applicant received remuneration not due to him for periods of unapproved leave, and the employer is entitled to recover such amounts by salary deduction. The court...

Court Disposition

Application dismissed with no order as to costs.

Orders

  • The application is dismissed.
  • No order as to costs.