Case Number: PSES.221-11/12.KZN
Applicant: SADTU obo N Kander
Respondent: Department of Education, KwaZulu-Natal
Issue: Unfair Dismissal - Incapacity - Poor Health
Award Date: 13 September 2012
Arbitrator: Veesla Soni
Commissioner: VEESLA SONI
Case No.: PSES.221-11/12.KZN Date of Award: 13 SEPTEMBER 2012
In the ARBITRATION between:
SADTU obo N KANDER
(Union / Applicant)
DEPARTMENT OF EDUCATION – KWAZULU NATAL
Union/Applicant’s representative: Mr R Hiralal
No 1 Kilt Ford Place
Telephone: 031 507 5699
Telefax: 031 507 5690
Respondent’s representative: Ms Jikela - Advocate
c/o State Attorney
Private Bag X 54301
Telephone: 031 365 3500
Telefax: 031 306 2448
DETAILS OF HEARING AND REPRESENTATION:
. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 191(5)(a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on 10 May 2012, at Durban Teachers Centre, College Road, Durban and it was part heard. The matter was adjourned for further evidence to the 25 June and 4 and 5 September 2012.
. The Applicant, Mrs N Kander was present and was initially represented by Mr A Munsamy from SADTU. From 25 June 2012 the Applicant was represented by an attorney, Mr Hiralall and the Respondent was represented by Ms S Jikela, an advocate, c/o State Attorney.
ISSUE TO BE DECIDED:
. The Applicant referred the dispute an as unfair labour practice in terms of S 186 (2) (a). It was agreed between the parties that the only issue for determination was whether the Applicant was entitled to paid temporary incapacity leave for the period of 12 August 2008 to 25 March 2011, date when the Applicant was first notified that her leave was denied.
 The issue no longer pertained to an unfair labour practice but emanated as a dispute arising from Resolution 7 of 2001. In terms of section 6 of the aforesaid resolution any dispute arising from the provisions of that agreement shall be referred to the council for determination.
. The Applicant was employed with the Respondent as an educator at Seatides Secondary School. She earned a salary of R 233 000 per annum.
 It is common cause that the Applicant was diagnosed with a serious illness identified as Lichen Planus Pigmentosis. She remains afflicted with the disease. The Applicant applied for temporary disability leave for various periods from 2008 to current date. It is common cause that the leave application forms were submitted and that the Applicant did not resume duty till present. It is also common cause that the only period in dispute is between 12 August 2008 to 25 March 2011, the latter being the date when she was first informed that her application for temporary disability leave was rejected. It was agreed that certain days were approved as temporary disability leave but the majority of her leave of absence was disputed and unpaid.
 This arbitration is an enquiry as to whether the Applicant should be paid for the entire period of absence or part thereof. Furthermore whether her condition was serious enough to warrant such lengthy disability leave. Evidence was also led as to the reasons why the Applicant was not informed of the department’s decision timeously and whether such reasons were valid and acceptable.
 The matter was initially referred as an unfair labour practice but the definition of same does not encompass the issue that has been identified. In terms of the ELRC Collective Agreement, Resolution 7 of 2001 dealing with new leave measures for educators covers the aspect of temporary disability leave (Annexure A, Section 9 ). In terms of section 6 any dispute pertaining to the provisions of the collective agreement shall be referred to the council. I accordingly have jurisdiction to make a determination on this issue. In addition S 23 of the ELRC constitution also empowers me to deal with the issue at hand.
SURVEY OF EVIDENCE AND ARGUMENT:
I do not intend to deal with every aspect of the evidence and or argument of each party but will only
record the part of the evidence and argument that I deem necessary for purposes of this determination.
The Applicants case was that she was diagnosed with a serious medical condition that affected her skin and she remained afflicted till current date. She submitted that her medical condition negatively affected her ability to teach. She requested for payment of temporary disability for the period set out and called an expert witness to motivate her submission.
 Applicant testified that she suffered from Lichen Planus Pigmentosis which was caused mainly by sunlight but also triggered by environmental factors like dust mites, chalk, fumes from perfume or insecticides and so forth. She explained that the condition arises as an inflammation which itches and stings and causes her to scratch resulting in life long scarring. She said that there was no cure for the condition.
 She said that the pigmentation affected her self-confidence as she was easily distracted by the scratching which caused her make up to melt and kids often laughed at her. She confirmed that in class the dust and sunlight worsened her condition. She explained that her illness affected her teaching as she was unable to conduct outdoor lessons or engage in extracurricular activities. She added that her home was adapted to suit her ailment whereby tiles replaced carpets and blinds were installed. She also stated that due to the impact of the spices she is unable to cook.
 Applicant stated that she applied for temporary incapacity and submitted all her documentation including the medical notes and reports. She said that she submitted her leave forms in August 2008 for a period of one month. She said that her condition did not improve and was put off for the entire term for which she submitted a further medical report. She added that in January 2009 she applied for medical boarding on the advice of her doctor and coupled with that she submitted medical reports for temporary disability for every term. She stated that she received no response from the department. She said that in April 2009 Thandile organized a specialist physician to examine her and the results were only conveyed to her in August 2009.
 Applicant stated that she was submitting all her reports and leave forms and was under the impression that it was paid leave. She said that during 2010 Thandile requested that she consult with a psychiatrist. She said that in 2011 she received a letter stating that the whole of 2010 and the first term of 2011 was leave without pay. She notified the principal that she would return to school and as per Thandile’s recommendation she would attend to administrative work in an air-conditioned room. She said that she was advised by her principal that he could not accommodate her and as a result she did not return to work.
 Under cross examination Applicant confirmed that she is afraid to return to work as she feared that her condition will deteriorate. She also stated that despite changing her lifestyle her condition did not improve but it remained under control. She confirmed that the employer could not protect her from dust and sunlight. She stated that she wrote to the principal on 9 May 2011 stating that she would attend to administrative duties as set out in Thandilés recommendation. Applicant also confirmed that if her work environment was adapted to suit her condition she would return to work. She admitted that she had to place her financial needs before her medical needs. She also conceded that she would waive the recommendation of her doctor to remain indoors and would return to a controlled work environment that contained blinds, tiles and an air conditioner.
 Dr Christopher Bentley Philips, dermatologist, stated that he first consulted with the Applicant on 21 July 2012. He confirmed that her specialist was Dr Dylan Naidoo who diagnosed her with Lichen Planius Pigmentosis, which was a chronic inflammatory condition and an auto immune disease. He advised that Dr Naidoo could not give evidence at this arbitration and upon perusing the Applicant’s medical records and history he was able to testify about her condition and her treatment. He explained that the condition involved abnormal cells that affected the modulation of the immune system. The pigmentosis was a pigment that was deposited into the deeper layers of the skin.
 He advised that the aggravating factors for this type of a condition was: trauma, friction, sunlight, dust, pollutants, chemicals, sensitizing products and psychological stress. He added that the aggravating factors in the class room were the children, dust and chalk. He agreed with the prognosis of Dr Naidoo in that there was no chance of any progress in her condition and it would in due course further deteriorate. He added that the Applicant was unable to attend to her duties at school for the disputed period as it would have resulted in her deterioration. In addition the drugs prescribed to her had severe side effects as it depressed the liver function and would have rendered it difficult for her to perform her duties at work. He explained that her medication was similar to chemotherapy drugs that were used for cancer patients.
 Dr Philips perused the Applicants treatment plan and confirmed that when she was not in school her condition remained less inflamed. He said that if the Applicant attended school her condition would have worsened. He mentioned that his advice would be that she be excused from her duties due to the severity of her illness and the fact that it would never improve.
 Under cross examination Dr Philips confirmed that there are other factors that aggravate the condition but stressed that some factors are more severe than others. He reiterated that although environmental factors affected her condition the classroom had more irritants and pollution than her home. He agreed that the Applicant was only partially incapacitated from a psychiatric perspective. He also explained that the Applicants condition was cosmetically disastrous and children are not always considerate of the emotional aspect of an illness. This would have caused stress which would have worsened the condition.
Respondent submitted that an independent body known as Thandile Health Risk Management was appointed to decide whether temporary incapacity leave was justified. The health risk manager confirmed the Applicant’s diagnosis but maintained that her condition was not progressive. The prognosis was that the condition did not cause physical and cognitive impairment and the psychological effects were not severe. They submitted that as a result the Applicant was absent from school without authority and was not entitled to temporary disability leave for the entire period.
 Dr Jaco Folmer, clinical assessor at Thandile Health Management and a specialist in occupational health, testified that the assessment of leave at Thandile was twofold. Firstly the file would be assessed by medical doctors and secondly the report from the doctor would be peer reviewed. He said that he wrote and reviewed some of the reports for the Applicant. He explained that they assessed the reports from the Applicant and if need arose they obtained specialist opinion on her condition.
 He explained that when they received leave documents they did the preliminary assessment. The forms are then sent to the doctors who attend to the assessment and if need be a second assessment is done. If an independent specialist is required then an assessment is done and the report from the specialist is re – assessed by the panel. A final report is created and handed to another doctor to the do the peer review. He said that in respect of the Applicant they received documents intermittently from 2009 to 2011. He added that the Applicant’s 2009 application for temporary disability for leave was only received in March 2012. The 2010 applications were received in October the same year. He submitted that when the Applicant applied for leave they either advised granting of the entire period or rejected it or advised a partial period. He said that in respect of the Applicant most of her leave was not advised.
 Folmer stated that for the period of January, April, July and October 2009 no days were advised for the long temporary disability leave. This decision was based on the recommendation from the independent specialist physician. He said that in 2010 the Applicant requested for 161 days for temporary disability leave and only 36 days were advised for approval. He said that their specialist confirmed the skin condition but advised that there was no physical or cognitive impairment. It was stated that if suitable changes to the work environment was made then the employee would be able to function normally. He added that the leave for 2011 was not advised to be approved on the basis that their independent psychiatrist agreed with the Applicant’s psychiatrist that the psychiatric impairments were a secondary issue and did not render her incapacitated to perform her duties. He said that from a dermatological aspect her treatment was optimal and once the environment was adapted to suit her condition she would be able to perform her duties. He believed that her condition did not lead to total incapacity.
 Folmer stated that the Applicant’s treatment was never disputed. He said that in term of her treatment plan her treatment remained consistent for the period between 2010 and 2012 which meant that her condition did not deteriorate and was under control. He said that based on her treatment she would not be able to perform her duties at an optimal level but that did not incapacitate her.
 Folmer confirmed under cross examination that the Applicant’s work environment contained the very ingredients she was advised to stay away from. He confirmed that it would be reasonable for the Applicant to report for duty if the environment was not adapted to suit her condition. He also agreed that the department should have acted and attended to the suggestions by Thandile.
 Gugu Hadebe, HR, deputy manager – conditions of service, described the process of leave applications. She said that the leave forms were received by the principal of the school which is then submitted to the superintendent of education – manager (SEM), it then goes to the district office and then the service Centre. She said that there are time frames for each step. The Applicant has 5 days from date of absence to submit the forms and a further 2 days indulgence thereafter. The Principal of the school also has 5 days to submit the form to the SEM. The forms are then sent to HR service Centre within a reasonable time for onward submission within 7 days to Health risk. She stated that in one instance the Applicant was a few days late in submitting her leave but the delay was caused mostly by the department.
 Hadebe stated that the delay between the department to Thandile was twofold. The first reason was due to the backlog in the department and the issue of being understaffed. The second was due to the fact that in 2008 the contract between the department and Thandile expired and was only renewed several months later, around April 2009. She said it was obligatory that the department has a health risk manager at all times and it was completely their fault that there was no health risk manager for the period that the contract expired and had to be renewed. She said that this created a further backlog.
 Hadebe explained that there was a further delay in the department reverting to the Applicant after receiving the recommendations from Thandile. This was due to the difficulty the department experienced in implementing the alternate placement suggested by Thandile. She explained that the Applicant was an educator employed in terms of Educators Act and if implemented the recommendation of Thandile for the Applicant to attend to administrative duties then the Applicant would fall under the Public Service Act and there would have been a significant drop in salary. Couple with that her class would have been left without an educator as she would have been seconded.
 She stated that the school principal was informed that the leave was turned down but she could not confirm if this was communicated to the Applicant.
Both parties submitted written closing arguments and I will not reiterate same except to highlight the salient points.
 Mr Hiralall argued that the crux of Dr Philips evidence was that the Applicant was diagnosed with a serious medical problem and was not able to perform her normal duties as the stimulants for her condition is common in a classroom. He argued that Dr Folmer agreed with the medical findings made by Dr Dylan Naidoo. He pointed out that Dr Folmer notified the Respondent of his findings in 2009 and this was only communicated to the Applicant 14 months later. He argued that despite this delay there was a further delay on the part of the department for the reasons highlighted by Hadebe. He argued that the respondent ought to have reverted to the Applicant within 30 days of her application for temporary disability leave and failure to do so was a breach of the Employment Educators Act. He sought an order that the leave for the period12 August 2008 to 25 March 2011 be regarded as paid temporary disability leave and also sought an order for cost in respect of legal fees and specialist fees.
 Ms Jikela argued that an educator is entitled to 36 days sick leave and once exhausted the department has a discretion to grant any addition incapacity leave whether temporary or permanent. She summarized Folmer’s evidence as Thandile having found that the impact of the condition to be cosmetic and psychological in nature which led to the Applicants diminished confidence. She argued that the Applicant intentionally neglected to attend to her psychological well-being. In addition with aggressive medical intervention, optimization of treatment and psychiatric involvement there was a likelihood that the Applicant could function in alternative duties. She submitted that the leave period was not only excessive but inappropriate.
She argued that the Applicant did receive the recommendations from the Health Risk manager but it was not timeously. Health Risk did not find the Applicant’s condition to be deteriorating as there was no major change in the treatment plan. She argued that the witness for the Respondent, Hadebe provided a plausible reason for the delay as finding an alternative position created practical problems and there was a backlog.
Jikela argued that on the Applicant’s own version she conceded that it was practically impossible for the Respondent to provide an environment that had no exposure to sunlight. She said that in any event her treatment did not improve despite optimum treatment and prolonged absence. She stated that the Applicant’s condition was exaggerated by the psychological impairment and if attended to she would have been able to return to work. She asked that the application be dismissed with an alternative plea as well.
ANALYSIS OF EVIDENCE AND ARGUMENT:
 The dispute was initially referred as an unfair labour practice but the issue in dispute was identified and agreed to be the only issue before the parties which is: whether the Applicant is entitled to paid temporary disability leave for the period of 12 August 2009 to 25 March 2011. In term of the ELRC Collective Agreement, Resolution 7 of 2001 and S 23 of the ELRC constitution I have jurisdiction to make a determination on the issue at hand.
 There are several anomalies that arise from this issue. It is not a simple enquiry into whether or not the Applicant is entitled to leave for the disputed period but it involves an analysis into the Applicants medical condition. The experts were clear and concise and their evidence was not materially different to each other. Dr Philips categorically and unequivocally stated that the Applicant suffered with a serious condition that was incurable but momentarily control. He added that it will progressively deteriorate. It was evident from both specialist, Dr Philips and Dr Folmer that the condition was triggered and worsened by environmental stimulants. Philips stated that there were more aggravating factors in the classroom than other areas occupied by the Applicant. This was not denied by Folmer. In the report by Dr Dylan Naidoo, and in the opinion of Philips the Applicant was unable to attend school for the period in dispute as she was medically incapable of doing so. In addition it was submitted that she was on extremely strong medication which would have affected her performance at work. Folmer confirmed that the medication was indeed strong. Under cross examination Philips maintained his position that the Applicant was incapable, though temporarily, to perform her duties. He constantly emphasized that the class room had more pollutants and irritants than her home. He also indicated that based on the visual appearance of the illness it would have caused some psychological stress, though secondary to the dermatological aspect. I disagree with the contention by Ms Jikela that the Applicants condition was exaggerated by psychological impairment and if treated she would have been able to return to work. Philips was clear that this condition worked in a cycle and the psychological aspects were secondary. Folmer did not dispute this finding.
 In weighing up the evidence of both specialists I am satisfied with the evidence of Philips. His testimony was supported by the medical reports of Dr D Naidoo, a leading dermatologist in KZN. In addition the prognosis of her condition, its gravity and side effects were not disputed by Folmer. He in fact agreed to the seriousness of the illness. His only contention was that the Applicant was able to attend work. In this regard they did not suggest that she simply returns to the classroom but actually made recommendations that her work environment be adapted to suit her condition. This recommendation was not implemented. Ms Jikela stated that with optimal treatment, psychiatric intervention and aggressive medical involvement the Applicant was able to function at work but chose not to present herself for duties. I must pause to note my concern with this submission. It was not that the Applicant chose not to report for duty but it was the Respondent who neglected to abide by the recommendations by Thandile.
 I conclude that the Applicant’s medical condition was serious and the class room rendered her exposed to irritants and pollutants that aggravated the condition. I find that leave for such an illness is not only necessary but justified. This leads me to the second issue as to whether or not she is entitled to paid temporary disability leave for the period that was not approved.
 It is evident that the report from Thandile suggested that the Applicant return to work on condition that the environment is suitably adapted and controlled. There is no dispute that the Applicant complied with the process and submitted medical reports and certificates. It was the Respondent who did not comply with the recommendation by Thandile. Folmer confirmed in his testmoney and under cross examination that the Department was advised of their suggestion in June 2009. Despite this advice the department did nothing. They did not communicate the feedback to the Applicant nor was she informed that her leave was declined.
 Hadebe presented several reasons for the delay and none of the reasons were attributed to any fault on the part of the Applicant. There was a minor delay in rendering her initial report but it was not in excess of a month. The department on the other hand did not take any action in the matter. They displayed no sympathy or concern and almost 2 years later contended that the leave was declined. I find this was unacceptable. There was a duty on the department to have informed the Applicant. There was a further duty to confirm her of the findings by Thandile. The department did none of this. More so the department then informs the Applicant that the leave was without pay. It was not a mere speculation that the Applicant was unable to carry out her duties. Specialist evidence confirmed the seriousness of the Applicant’s condition which placed an onus on the employer to have adapted the working conditions. In fact there was not only an onus but a greater duty on them to provide a more adaptable environment.
 Hadebe stated that the initial delay in referring the matter to Thandile was twofold. Firstly, they were understaffed and secondly the contract with Thandile expired and had to be renewed. Neither reason is acceptable or justified. It reinforced my assumption that the delay was solely caused by the Respondent. The fact that the Respondent allowed the contract with Thandile to lapse is negligent and careless. I am not at all convinced that the Respondent displayed any sincerity in this matter. Hadebe also stated that after the recommendation was made by Thandile there was a further delay in communicating the advice to the Applicant as they experienced teething problems in trying to implement the recommendation. Once again I find a lack of interest in trying to speedily resolve the matter. The Department was well aware that the Applicant was declared unfit to return to work for several periods. They had the benefit of the report and suggestions by Thandile but never communicated same to the Applicant timeously.
 In the circumstances I find that the Applicant was only informed of the recommendations and the outcome of her leave applications on 25 March 2011. I find that had she been advised earlier she would have made every effort to attend work, be it to her detriment or not. She also would have progressively pursued the implementation of a controlled environment. In the absence of communication or notification to the Applicant, I find that her continued absence was justified. I accept her version and that of her specialist and strongly feel that her absence should be regarded as temporary disability leave. The Applicant has discharged the onus and has established that she is entitled to disability leave with full pay and benefits from 12 August 2009 to 25 March 2011.
. The Applicant discharged the onus in establishing that she was entitled to temporary disability leave for the period of 12 August 2009 to 25 March 2011.
 The leave for the above period is granted with full pay and benefits.
 The Applicant is granted leave to approach the council for calculation of her leave for the above period.
 There is no order as to costs
ELRC Commissioner : VEESLA SONI Date : 13 September 2012