Case Number: PSES318-17/18EC
Province: Eastern Cape
Applicant: SAOU obo Volmer W
Respondent: Department of Education: Eastern Cape
Issue: Unfair Dismissal - Incapacity - Poor Health
Venue: Department of Education - Eastern Cape in Port Elizabeth
Award Date: 3 October 2017
Arbitrator: AW Howden
Case No PSES318-17/18EC
In the matter between
SAOU obo Volmer W Applicant
Department of Education: Eastern Cape Respondent
ARBITRATOR: AW Howden
HEARD: 2 October 2017
DATE OF AWARD: 3 October 2017
SUMMARY: Labour Relations Act 66 of 1995 – Section 24(2) [24(5)] – interpretation and application of collective agreement – ELRC Resolution 7 of 2001/ PILIR/PAM – whether the Department of Education - Eastern Cape applied the provisions of the Collective Agreement correctly, in that the Department of Education had failed to inform the educator, within the 30 day period prescribed, whether an application for temporary incapacity leave (TIL) had been approved or refused.
DETAILS OF PROCEEDINGS AND REPRESENTATION
1. The dispute was scheduled for arbitration in terms of Section 24(5) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Section 33A and Clause 68 and 69 of the ELRC Constitution : Dispute Resolution Procedures (Collective Agreement No. 6 of 2016). The hearing was held at the offices of the Department of Education - Eastern Cape in Port Elizabeth on 2 October 2017.
2. The Applicant, Ms W Volmer, was present and represented by Ms E Hart from SAOU.
3. The Respondent, Department of Education - Eastern Cape, was represented by Ms A Slabbert (Labour Relations Officer).
4. The parties submitted a combined bundle. None of the documents were in dispute and it was agreed that the documents’ contents were what they purported to be.
ISSUES IN DISPUTE
5. I am required to determine whether the Department of Education - Eastern Cape applied the provisions of ELRC Resolution 7 of 2001/ PILIR/PAM correctly, in that the Department of Education had failed to inform the Applicant, within the 30 day period prescribed, whether her applications for temporary incapacity leave (TIL) had been approved or refused.
BACKGROUND TO THE DISPUTE
6. The Applicant is employed by the Respondent as a Post Level 1 Educator at Khumbulani High School.
7. In 2016 the Applicant was booked off on sick leave on a number of occasions and applied for temporary incapacity leave. The Applicant however was only informed months later by the Respondent that her TIL applications were refused.
8. The Applicant requested that should the outcome of the matter be in her favour, the periods of sick leave declined by the Respondent be converted to approved temporary incapacity leave.
SURVEY OF EVIDENCE AND ARGUMENT
9. It is common cause between the parties:
9.1 That the Applicant is employed as a Post Level 1 Educator at Khumbulani High School.
9.2 That the Applicant was booked off sick for the periods:
(i) 18 July 2016 to 16 August 2016
(ii) 17 August 2016 to 16 September 2016
(iii) 17 October 2016 to 18 November 2016
9.3 That Applications for Temporary Incapacity Leave were submitted by the Applicant for the periods mentioned above.
9.4 That the Applications for Temporary Incapacity Leave were referred to the Health Risk Manager and were compliant of all the requirements.
9.5 That the Applicant was informed via a letter dated 19 May 2017 that her Applications for Temporary Incapacity Leave were declined for the periods (i) and (ii) above. (Period (i) was approx 10 months late, and period (ii) was approx 9 months late.)
9.6 That the Applicant was informed via a letter dated 13 June 2017 that her Application for Temporary Incapacity Leave was declined for period (iii) above. (Period (iii) was approx 7 months late.)
9.7 That all internal procedures and /or remedies had been exhausted by the Applicant.
9.8 That the Respondent had not deducted unpaid leave from the Applicant’s salary for any of the above periods.
9.9 That the parties agreed that the Respondent did not comply with PAM Chapter H paragraph 5.3.10, which requires TIL applications to be concluded within 30 days.
10 At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.
The Applicant’s Submissions
11 The Applicant’s Representative stated that the dispute was about the unfair application of Collective Agreement 7 of 2001, which dispute arose after decisions were taken by the Respondent to decline the Applicant’s Applications for Temporary Incapacity Leave. She further stated that the Applicant’s Applications for Temporary Incapacity Leave were dealt with late, and outside of the prescribed 30 day period.
12 The Applicant’s Representative submitted that the Respondent, when making these decisions, did not comply with Resolution 7 of 2001, in that they did not consider the Applications for Temporary Incapacity Leave within the specified period of 30 days.
The Respondent’s Submissions
13 The Respondent confirmed that the basis of the Applicant’s argument was that she was not notified within the 30 day period prescribed of the refusal of her Applications for Temporary Incapacity Leave.
14 The Respondent implied that late notification was not a justifiable reason and referred to the comments of a recent judgement in the Labour Court where Judge Witcher J, addressed this issue and stated “a late decision does not harden to a salary entitlement”.
15 The Respondent further referred to various clauses within the PILIR which refers to the discretion of the Department when it comes to the approval of Applications for Temporary Incapacity Leave and the conditional approval of such applications for a period of 30 days. She also referred to warnings on the actual Application Form itself.
16 The Respondent further confirmed that Section 38 of the Public Service Act 1994 allows for the deduction of provisionally paid sick leave, however confirmed deductions had not yet been made.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
17 Paragraph 7.2.9. (Short Term) [Paragraph 184.108.40.206 (e) Long Period] of the PILIR states: The Employer must within 30 working days after receipt of both the application form and the medical certificate referred to in paragraphs 7.1.4 and 7.1.5 approve or refuse temporary incapacity leave granted conditionally.
18 If interpreting this clause literally, which is what I have done, then it is clear the Respondent has not complied with the Resolution/PILIR/PAM.
19 It is common cause that the Respondent notified the Applicant about the refusal of her Applications for Temporary Incapacity Leave, outside of the 30 day period prescribed.
20 Until very recently the thinking of Commissioners have been guided by the matter of PSA and Another v PSCBC and Others (D751/09)  ZALCD 3, where the Judge, Cele J, in dealing with the failure of an Employer to render a decision regarding the approval or disapproval of TIL within 30 day period, commented as follows after a TIL application was declined by the Department “This report sought to have a retrospective effect. The consequences of a retrospective effect is that it amounts to an unreasonable and arbitrary exercise of a discretion with unfair consequences to an employee. Nowhere in clause 7.5 of Resolution 7 of 2000 (PSCBC), is there a suggestion that the employer may not grant further sick leave after the lapse of a 30 day period. On the contrary, as investigations shall be in accordance with Item 10 (1) of Schedule 8 of the Act, a further sick leave period may be granted to the employee.”
21 In their submissions the Respondent referred to, Police and Prisons Civil Rights Union and another v Department of Correctional Services and another (2017) 38 ILJ 964 (LC), where Witcher J (24 – 26) held:
“ I am aware of the judgment of my learned brother, Cele J, in Public Service Association of SA & another v PSCBC, Gouvea & others. In this he finds that where an application for temporary incapacity leave is declined outside the 30-day investigation period, any deduction from an employee’s salary for the period (outside the 30-day period) that he or she was awaiting a decision from the employer would offend the prohibition against retrospectivity. Cele J states that ‘the consequence of a retrospective effect is that it amounts to an unreasonable and arbitrary exercise of a discretion with unfair consequences to an employee’. This has been taken to mean that ‘employees cannot be subjected to leave without pay/monthly deductions from their salary (in order to recover salary paid, where an application for TIL/IHR is declined for a period they have been off work sick) or stoppage of salary unless the application is declined within 30 days or unless they have been given a date to return for work and have failed to do so.
 The decision in Gouvea flowed from an analysis of clause 7.5.1(b) of PSCBC Resolution 7 of 2000, which is identical in operation to clause 7.3.5 (and 7.2.5) in PILIR. PILIR, a ministerial determination, indeed amplifies the earlier PSCBC Resolution 7 of 2000.
 In my view, this interpretation of PILIR is not sustainable in the light of the fact that an employee applying for temporary incapacity leave has not been granted it yet. A late determination of an employee’s application for additional leave, as lamentable as this is, and a subsequent instruction to pay back money to which the employee was not entitled does not produce a decision that retrospectively deprives the employee of a right to the payment in question. An employee seeking additional sick leave in terms of PILIR has conditionally been paid a salary while his or her application for additional leave is considered. This consideration should be over within 30 days. However, if the period the employer takes to decide the application exceeds the 30 days set out in PILIR, I do not see how the conditionality of payments to an employee, subject to a medical assessment, hardens into an entitlement after the 30-day investigation period lapses. Nor, in the light of clause 220.127.116.11, 18.104.22.168 and note 4 of PILIR, should a reasonable employee applying for additional leave assume that, should a medical assessment go against him or her, even if delayed, he or she is entitled to be paid for his or her absence from work. It seems to me that, if the underlying medical condition which prompted an employee to seek additional sick leave, is assessed not to have warranted such leave, this fact must determine what happens to any payments he or she received while applying and not the employer’s delay in attending to the application.”
22 Subsequent to Judge Witcher’s Labour Court Ruling however, further case law has been handed down by the Labour Court, namely; Department of Roads and Transport and JC Robertson and PSCBC and others (PR40/14)  ZALCPE where Judge Lallie J, held that:
 “The arbitrator’s interpretation of clause 7.5.1. (b) of Resolution 7/2000 which is based on the decision on PSA HC Gouvea (supra) cannot be faulted. When exercising the discretion to grant or refuse TIL, the applicant was enjoined by Resolution 7/2000 to take into account provisions 10 (1) of Schedule 8 to the Labour Relations Act 66 of 1995 as amended (the LRA). The interpretation the arbitrator gave to clause 7.5.1. (b) is consistent with the letter and spirit of the LRA. His decision is not based only on giving a peremptory meaning to the word “shall” in clause 7.5.1 (b) of Resolution 7/2000. He therefore conducted the correct enquiry in the correct manner and reached a reasonable decision”.
23 I am inclined to agree with the thinking of Judge Cele J, which has now been supported by Judge Lallie J, as the Applicant has been seriously prejudiced by the late refusal of her Applications for Temporary Incapacity Leave. In my opinion even more so when you see the word “shall” in Resolution 7/2000 has been changed to “must” in the PILIR.
24 The Respondent highlighted the fact that throughout the PILIR, wording is used confirming the fact that the additional days are at the discretion of the Employer and the leave granted in the interim is conditional. It is recognised that the Respondent has a discretion, however the Respondent had to exercise that discretion properly, namely by complying with paragraph 22.214.171.124 (Short Term) [Paragraph 126.96.36.199 (e) Long Period] of the PILIR which states: The Employer must (emphasis added) within 30 working days after receipt of both the application form and the medical certificate referred to in paragraphs 7.1.4 and 7.1.5 approve or refuse temporary incapacity leave granted conditionally.
25 It is my finding that the Department of Education has not applied the provisions of ELRC Resolution 7 of 2001/ PILAR/PAM correctly, in that the Department of Education failed to inform the Applicant, within the 30 day period prescribed, whether her Applications for Temporary Incapacity Leave had been approved or refused. I further find that based on the evidence before me and the guidance given by Judges Cele J, and Lallie J, the Applicant is entitled to paid temporary incapacity leave.
26 In terms of section 138(9) of the LRA “[a] commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award-
(a) that gives effect to any collective agreement,
(b) that gives effect to the provisions and primary objects of this Act,
(c) that includes, or is in the form of a declaratory order.”
27. I consider it appropriate to render the following award.
28 The Respondent, Department of Education - Eastern Cape, has not applied the provisions of ELRC Resolution 7 of 2001/PILIR/PAM correctly, in that the Department of Education failed to inform the Applicant, W Volmer, within the 30 day period prescribed, whether her Applications for Temporary Incapacity Leave had been approved or refused.
29 The periods, 18 July 2016 to 16 August 2016, 17 August 2016 to 16 September 2016 and 17 October 2016 to 18 November 2016 is to be recorded as approved paid Temporary Incapacity Leave.
30 The Respondent is ordered to amend the Applicant’s personal / leave file accordingly.
Panellist: AW Howden