Case Number: PSES 196 - 17/18FS
Province: Free State
Applicant: SAOU abo Victor, SE
Respondent: The MEC for Education Free State
Issue: Unfair Dismissal - Incapacity - Poor Health
Venue: Katleho Building, Bloemfontein, Free State
Award Date: 11 March 2018
Arbitrator: David Pietersen
SAOU obo VICTOR, SE APPLICANT
THE MEC FOR EDUCATION,
FREE STATE PROVINCE RESPONDENT
Case No: PSES196-17/18FS
Date: 11 March 2018
Venue: Katleho Building, Bloemfontein, Free State
DETAILS OF HEARING AND REPRESENTATION
1. This case was initially referred as SAOU obo Smith RJ & 1 Other. However, when the union submitted its arguments, it only dealt with the case of Victor, SE, whom I assume might be the other applicant. It appears from the arguments that Smith RJ is longer part of this case. The citation of the parties is therefore amended to reflect SE Victor as the only applicant.
2. This is the award in the arbitration between SAOU obo Victor, SE the applicant and the MEC for Education, Free State Province, as the respondent.
3. The arbitration was held under the auspices of the Education Labour Relations Council (the Council) in terms of section 24(5) of the Labour Relations Act 66 of 1995 as amended (the Act) and the award is issued in terms of sections 138(7) of the Act.
4. The arbitration hearing took place on 18 August and 01 November 2017 at the provincial offices of the Department of Education in Bloemfontein.
5. The applicant was absent and represented by Mrs A Bester, the Assistant Provincial Secretary from the trade union SAOU. The respondent was represented by Mr T Tsunke, its Labour Relations Officer.
ISSUE TO BE DECIDED
6. I am required to determine whether the respondent correctly interpreted and applied the Council’s Resolution 7 of 2001 (the Resolution) relating to temporary incapacity leave (TIL).
BACKGROUND TO THE DISPUTE
7. The applicant is employed by the respondent as an Educator at Verkeerdevlei Primary School. Due to her illness in 2016, the applicant’s normal sick leave became exhausted of which her medical practitioner booked her off-sick again for a period of 45 days. The applicant applied for Temporary Incapacity Leave (TIL) which was declined by the respondent.
8. A formal dispute was referred by the applicant to the Council on 07 June 2017 after she exhausted internal processes. An arbitration hearing was held on 18 August 2017 and of which the parties requested a postponement with a view of settling the dispute. The dispute was not resolved and the arbitration hearing resumed on 01 November 2017. The parties requested to submit closing arguments by no later than 10 November 2017. Only the applicant submit her closing arguments.
SURVEY OF EVIDENCE AND ARGUMENT
9. This section constitutes a brief summary of the evidences and arguments put forward by the parties. It is not intended to be exhaustive but I have taken all the submissions into consideration in arriving at my conclusions.
The Applicant’s Case
10. The applicant, through her representative submitted in her opening statement that the respondent did not apply the Resolution correctly and therefore prejudiced the applicants. She submitted that the applicant correctly applied for TIL using the prescribed forms and procedures. Her application was also accompanied by medical certificates and reports together with a consent form which authorises the respondent to engage with her medical practitioner for more information.
11. The applicant then received a letter from the respondent on 01 February 2017 which informed her that her TIL application for the 45 days has been declined. She was then given an option to either consent to the utilisation of her capped leave or to appeal against the decision. She then opted to appeal against the decision in the form of lodging a grievance. On 17 April 2017, she was then informed that her grievance was unsuccessful.
12. With reference to paragraph 9 of the Resolution, the applicant submitted that the respondent failed to investigate the TIL application such as her inability to perform her normal duties, the possibility to adapt her duties as well as to give feedback within the prescribed 30 days. The respondent also failed to acquire a second opinion in accordance with paragraph 9.3 of the Resolution.
13. The applicant argued that had the respondent complied with the 30 days rule, she would have exercised her options as outlined in section 21 of Chapter J of the Employment of Educators Act 76 of 1998 PAM which would have been to either return to work or to take unpaid leave. This would have prevented her from suffering the prejudice which she did.
14. In conclusion, the applicant submitted that the respondent acted grossly unfairly when it decided to decline her TIL application. She submitted that she did qualify for the TIL in accordance with paragraph 9.1 of the Resolution. It is her prayer that I should order the respondent to pay her compensation in accordance with section 33A(8)(b) of the Act.
The Respondent’s Case
15. The respondent’s representative submitted as part of his opening statement that the applicant had a wrong interpretation of the Resolution. The respondent’s HRM disapproved the applicants’ applications because it was prematurely referred. HRM did not yet make a decision.
16. It is important to note that the respondent did not submit an answering affidavit or any other arguments to the Council for purposes of this arbitration matter.
ANALYSIS OF EVIDENCE AND ARGUMENT
17. Paragraph 9 of the Resolution provides the following:
9 Temporary Incapacity Leave
9.1 An educator who has exhausted her or his sick leave credit in a three-year cycle and who, according to the relevant medical practitioner, requires to be absent due to incapacity that is not permanent may be granted additional sick leave with full pay.
9.2 Such a condition must have been certified in advance by the attending medical practitioner as a temporary incapacity except where conditions do not permit.
9.3 The Head of Department may require the educator to obtain a second opinion before granting approval for additional sick leave. Expenditure in this regard will be met from the departmental budget.
9.4 The Head of Department may grant a maximum of 30 consecutive working days leave with full pay during which period an investigation must be conducted into the nature and extent of the incapacity. The investigation shall be conducted in accordance with Item 10(1) of Schedule 8 of the Labour Relations Act, 1995.
9.5 On the basis of medical evidence, the Head of Department may approve the granting of additional sick leave days on conditions that he or she shall determine.
9.6 If the educator is of the view that she or he has been unfairly treated as regards the granting of additional sick leave, she/he has the right to follow the grievance procedure and the relevant dispute resolution procedures in order to settle the matter.
18. As stated in paragraph 16 above, the respondent did not submit its version or justification on why it is opposing this arbitration matter or why it had to decline the applicant’s TIL application. I am therefore only left with the version of the applicant in which to decide this matter.
19. The applicant alleged that the respondent did not investigate her TIL application and comply with the 30 days timeframe within which it should have given feedback to the applicant. The evidence before me shows that the respondent received the applicant’s application for TIL and respondent to it in a letter dated 28 November 2016. The respondent promised to investigate the matter and report back to the applicant.
20. On 01 February 2017, the respondent reported back to the applicant and indicated that the TIL application has being declined. No investigation report from the Health Risk Manager was attached or referred to in the said letter. An investigation by the respondent’s Health Risk Manager was the basis upon which it would revert back to the applicant as regards her TIL application. This never happened.
21. It is therefore my finding that the respondent did not conduct an investigation as indicated in its letter dated 28 November 2016 and neither was the outcome thereof given to the applicant within the prescribed 30 days period. I therefore find that the respondent did not comply with the provisions of the Resolution and that no justification was provided for declining the TIL application.
22. I therefore also observed the following precedents in arriving at my conclusion:
• In PSA obo Muir / Department of Correctional Service  9 BALR 823 (PSCBC), the Official failed to justify refusal of sick leave. The employer was held to be liable.
• In PSA obo Du Plessis / Department of Correctional Services  11 BALR 1046 (PSCBC); A Prison official suffering from chronic depression refused temporary disability leave for reasons not contemplated in relevant collective agreement – the department was ordered to compensate the employee.
• In PSA obo Visser / Department of Education  12 BALR 1240; Employer taking more than a year to process employee’s claim for paid temporary incapacity leave despite peremptory provision of agreement requiring application to be processed within 30 days – Employer was ordered to credit employee
• In PSA obo Hopley v Department of Health, Western Cape  6 BALR 625 (PSCBC); Employee was refused temporary incapacity leave even though her applications were supported by medical certificates – The Commissioner held that the leave was improperly refused because employer’s decision not supported by medical evidence.
23. Based on the above reasons given as well as the authorities cited above, it is hereby my finding that the respondent failed to comply with paragraphs 9.3 and 9.4 of the Resolution and thereby failed to approve the TIL application of the applicant which she is entitled to in accordance with paragraphs 9.1 and 9.2 of the Resolution.
24. The applicant requested as a relief that the respondent be ordered to pay a fine in accordance with section 33A(8)(b) of the Act. Even though the applicant is at liberty to make such a prayer, I am of the view that a correction of the respondent’s conduct should be more relevant in this case. I shall therefore order the respondent to approve the applicant’s TIL application and to reimburse her all the money which it has deducted up to date.
25. I hereby make the following award:
26. The respondent, MEC for Education Free State, is ordered to approve the Temporary Incapacity Leave application of the applicant, Mrs SE Victor for the periods:
17 October 2016 to 30 November 2016
27. The deductions made from the applicant’s salary in relation to this temporary incapacity leave must be reimbursed to her within 60 days of the receipt of this award.
This is done and dated on 22 November 2017 at Kimberley.