PSES874-17/18 WC
PSES874-17/18 WC
Award Date:
23 August 2018
Case Number: PSES874-17/18 WC
Province: Western Cape
Applicant: N.M. DANIELS
Respondent: Department of Education Western Cape
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 23 August 2018
Arbitrator: ADVOCATE J P HANEKOM
PANELIST: ADVOCATE J P HANEKOM
CASE NO: PSES874-17/18 WC
AWARD DATE: 20 AUGUST 2018
In the matter between:
N.M. DANIELS Applicant
and
DEPARTMENT OF EDUCATION – WESTERN CAPE Respondent
ARBITRATION AWARD
DETAILS OF THE HEARING AND REPRESENTATION:
1. This matter was set down for arbitration before me on 25 July 2018 concerning an alleged unfair labour practice related to benefits. The Applicant presented her own case. Mr. J.F. Horne, of Labour Relations, represented the Respondent.
2. The Applicant and the Respondent agreed to argue the case on the common cause facts and to whether the Applicant is entitled to compensation. They agreed to submit written argument respectively by 1 and 8 August 2018 and reply, if needed, by 10 August 2018. I will then issue my award on or before 24 August 2018.
ISSUE TO BE DECIDED:
3. I have to decide whether the Respondent committed an unfair labour practice related to benefits and if so whether the Applicant is entitled to compensation.
BACKGROUND:
4. The Respondent employs the Applicant as a Resource Educator at Metro Central Education District.
5. On 24 May 2017, the Applicant booked off sick until 2 June 2017 and returned to work on Monday, 5 June 2017. The Applicant only went to see a medical practitioner on 29 May 2017, who then booked her off sick for an unknown medical reason until 2 June 2017. The Applicant submitted an application for leave for the period (24 May 2017 to 2 June 2017) on 31 May 2017. On 9 June 2017, the Applicant’s manager did not recommend leave for 24 May 2017 and 26 May 2017, as the Applicant did not have sick certificates for those days.
6. On or about 15 September 2017, the employer deducted the amount of R2 391,43, in respect of the two days (24 May 2017 and 26 May 2017) as leave without pay, from the Applicant’s salary.
7. The Applicant referred an unfair labour practice dispute through her union (PSA) to the Council on or about 8 March 2018 concerning a required reimbursement for the leave without pay in respect of the amount in question. At conciliation on 28 March 2018, the Respondent was prepared to settle the matter on the basis that it would reimburse the Applicant with the amount of R2 391,43 on condition that the Applicant submit a written letter from the doctor that the Applicant was off sick for the two days in question. The Applicant obtained a letter from her doctor, but sent it to the wrong office and not to the Respondent’s representative in the matter. The Applicant requested arbitration on 2 May 2018.
8. The matter was then set-down for arbitration on 1 June 2018 before panellist, Commissioner Retief Olivier. On that day, the parties reverted to conciliation with consent. According to the Respondent, the Applicant then backtracked on her initial decision to settle on that basis referred to above. The Applicant wanted to proceed with the arbitration, as she required compensation. During the discussions off record, the Applicant allegedly threatened Commissioner Olivier that she would take the matter on review, if he did not award her compensation. Commissioner Olivier for that reason decided to recuse himself and issued a recusal ruling on 4 June 2018. The matter was then set-down before me on 25 July 2018 for arbitration.
9. The Applicant argued that the Respondent committed an unfair labour practice by unlawfully deducting the amount in question from her salary, as she was not required to submit a sick certificate in respect of the two days. The Respondent argued to the contrary.
EVIDENCE AND ARGUMENT BY THE APPLICANT:
10. The Applicant submitted a common bundle of documentary evidence and lengthy written argument. I decided to summarise the evidence and argument as far as I consider relevant for the purpose of my award.
11. The Applicant submitted that in terms of the leave policy, she was not required to submit a sick certificate for the two days (24 and 26 May 2017). The employer was therefore grossly unfair by deducting the money from her salary to punishing her after she made a protective disclosure regarding corruption, racism, discrimination, and etcetera.
12. The Applicant further submitted that an employer is not entitled deduct the money from her salary. In terms of section 34 of the Basic Conditions of Employment Act 75 of 1997 as amended (BCEA), the employer may not make any deductions from an employee’s remuneration, unless the employee agreed to that in writing. Further, the Respondent failed to follow a fair process before it decided to deduct the money from her salary. The Respondent did not give the Applicant an opportunity to state her case before its decision. The Applicant also argued that the Constitutional Court in case CCT6/17 decided on 7 December 2017 declared section 38 of the Public Service Act of 1994 as amended unconstitutional. Section 38 relates to deductions from an employee’s salary. Therefore, the Respondent was not entitled to make the deduction from her salary.
13. The Applicant argued that 25 May 2017 was Ascension Day and a school holiday, therefore she did not require a sick certificate for the two days in question, as she was not absent for more than two days.
14. The Applicant further submitted that the gross unfair conduct of the employer, caused serious ramifications in that it crippled her financially for a period of 13 months, until the employer eventually paid the amount of R2 391, 43 into her bank account on 15 June 2015. The action of the employer also caused her great undue psychological trauma, stress, anxiety, high blood pressure followed by depression.
EVIDENCE AND ARGUMENT BY THE RESPONDENT:
15. The Respondent also submitted common bundles of documentary evidence in support of its argument.
16. The Respondent submitted that 25 May 2018, the day in between the two days in question, was a normal working day in the organisation for other institutions of the Department. The Applicant applied for sick leave for the period concerned and only went to a doctor on 29 May 2017, 5 calendar days after she suffered from her illness. The Department therefore lawfully implemented unpaid leave for two days (24 and 26 May 2017), as the Applicant absented herself from work for more than two consecutive days without a sick certificate for the tow days in question.
17. At conciliation, the parties reached a oral agreement that the Applicant would be reimbursed with the amount in question, if she provided a letter from her doctor to confirm that she was ill on the two days in question. However, at arbitration the Applicant deviated from the proposed settlement and insisted to proceed with arbitration, as she required compensation.
18. Once the doctor’s letter came to the attention of the Respondent, it decided to pay the amount of R2 391, 43 into the Applicant’s bank account on 15 June 2018. The Respondent therefore argued it did not commit an affair labour practice that merited compensation, as the Applicant suffered no damage.
ANALYSIS OF THE EVIDENCE AND ARGUMENT:
19. The facts stated in the Background above were common cause between the parties. The parties further submitted common bundles of documents as documentary evidence in support of their arguments.
20. Section 23(1) of the BCEA states “An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.” The employer’s policy referred to in the documentary evidence as Personnel Administrative Measures (PAM) has a similar provision that states in Chapter H5.2.5.1 as follows “Educators who apply for three or more sick leave days must submit a medical certificate.” The general rule of interpretation requires that ordinary words must be given its ordinary meaning, unless it leads to absurdity or ambiguity. To my mind, I do not have to give an alternative interpretation to the words quoted from BCEA and PAM. It is therefore clear that if an educator is absent for three or more days, a medical certificate is required. In the instant case, the Applicant booked off sick from 24 May 2017 and only returned to work on 5 June 2017. The Applicant’s doctor confirmed this in the letter dated 3 April 2018, submitted as documentary evidence. Therefore, the Applicant was indeed unfit to work for the entire period concerned. This was not a case where the Applicant was unfit to work for one day and then again became unfit to work two days later on 26 May 2017. The Applicant on her own version was unfit to work and absent from work for more than two consecutive days. In other words, the Applicant according to her doctor was unfit to work for the entire duration of her absence because of her illness. Accordingly, the Applicant required a sick certificate for the entire period concerned. In my view, the employer at the time correctly deducted the amount in question from the Applicant’s salary on or about 15 September 2017, as it was not in possession of a sick certificate for the two days in question.
21. The Applicant’s argument that 25 May 2017 was an official school holiday, could not carry weight. The Applicant could not dispute the fact that 25 May 2017 was not an official school holiday, as it was a working day for other parts of the organisation. Be it as it may, the Applicant in totality was absent from work for more than two consecutive days or three or more days due to illness. On that basis, the Applicant was required to submit a sick certificate for the entire period concerned and could not rely on fragmented calculation of the days of illness. Section 23(1) of the BCEA does not talk about “working days”. It clearly refers to “absent from work for (my emphasis) more than two consecutive days” due to illness.
22. It was an undisputed fact that the employer endeavoured more than once at conciliation and at the previous arbitration, to settle the dispute. Once the Applicant’s doctor’s letter eventually came to the Respondent’s attention it reimbursed the Applicant for the amount in question. The Applicant however changed her mind not to settle and persisted to proceed with arbitration, because she wanted compensation in addition to the recovery of the amount in question. By law, the Applicant is entitled to compensation if she could prove and unfair labour practice as referred to in section 186 of the Labour Relations Act 66 of 1995 as amended (LRA). It is trite law that the amount of compensation to be determined by the circumstances of each case. I however find that the Respondent did not commit an unfair labour practice, as it was entitled by law not to pay the Applicant for the two days in question in absence of the sick certificate. Section 34 of the BCEA referred to by the Applicant was not applicable in the instant case, as it relates to a debt or a loss or damage. Further, section 38 of the Public Service Act referred to by the Applicant was also not applicable, as it relates to recovery of monies wrongly paid to an employee, which was not the case.
23. Even if I have had to find for argument’s sake that the employer committed an unfair labour practice when it deducted the amount in question from the Applicant’s salary, I do not find this to be a case that required compensation. The Respondent attempted to remedy the situation. The Applicant reluctantly and persistently wanted to pursue the matter and changed her mind at the initial arbitration on 1 June 2018. That explains why the Applicant continued with the arbitration hearing on 25 June 2018 in the absence of her union (PSA). The Applicant followed her own mind and allegedly incurred legal costs to seek advice. She was the cause of her own peril and only has herself to blame.
24. On a balance of probabilities, I find it unlikely that the amount in question crippled the Applicant financially and caused undue psychological trauma, stress, anxiety, high blood pressure, and depression. The Applicant did not present medical evidence in support of her argument. In my view, it rather seemed that the Applicant’s medical condition was caused by some stressors other than the meagre amount of R 2 391, 43. It appeared from the documentary evidence that the real reason for her claiming compensation was, because of the protected disclosure that she reported to the employer. I quote from the Applicant’s written submission that reads “This grossly Unfair Act by the Respondent, is what the Applicant contents now, was done by the Respondent solely for the purpose of punishing the Applicant after she made a protective disclosure, … regarding corruption, racism, discrimination …” . To my mind, that further explains why the Applicant was so desperate to get compensation and why she insisted on an award of 12 months’ salary. The Applicant’s protected disclosure was referred to the Minister of Education for its decision. The outcome of was attached in the common bundle of documents. The finding states under conclusion, “Based on the above, I can find no evidence of corruption and ‘covering up’ at Ned Doman. The allegations you are making can have serious consequences for people and I trust that you will now desist from making them.” The Minister’s response also referred to a meeting with the Applicant on 4 July 2018 in respect of the protected disclosure. To my mind, the Applicant’s protected disclosure therefore did not relate to her manager’s decision on 9 June 2017 not to recommend the Applicant’s sick leave for the two days in question. He made the decision prior to her disclosure. I therefore find that the Applicant’s allegation of ulterior motive was without substance or proof thereof.
25. In respect of the issue of costs, I find that the Applicant was frivolous and vexatious, when she persisted to continue with arbitration, knowing that her union did not agree with her reasoning and therefore decided to represent herself at the second arbitration. The Respondent endeavoured more than once to remedy the situation, but could not do so due to the Applicant’s persistence to claim compensation. At the initial arbitration hearing, as is evident from Commissioner Olivier ruling, he tried to explain the situation to the Applicant whereafter she threatened him with a review application. Therefore, under the circumstances I deem it necessary to award costs against the Applicant.
AWARD:
26. In the premises, I make the following award:
(1) I find that the Applicant did not discharge the onus of proving and unfair labour practice relating to benefits.
(2) I order the Applicant to pay the arbitrator’s fee for 25 July 2018.
ADV. J.P. Hanekom
Province: Western Cape
Applicant: N.M. DANIELS
Respondent: Department of Education Western Cape
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 23 August 2018
Arbitrator: ADVOCATE J P HANEKOM
PANELIST: ADVOCATE J P HANEKOM
CASE NO: PSES874-17/18 WC
AWARD DATE: 20 AUGUST 2018
In the matter between:
N.M. DANIELS Applicant
and
DEPARTMENT OF EDUCATION – WESTERN CAPE Respondent
ARBITRATION AWARD
DETAILS OF THE HEARING AND REPRESENTATION:
1. This matter was set down for arbitration before me on 25 July 2018 concerning an alleged unfair labour practice related to benefits. The Applicant presented her own case. Mr. J.F. Horne, of Labour Relations, represented the Respondent.
2. The Applicant and the Respondent agreed to argue the case on the common cause facts and to whether the Applicant is entitled to compensation. They agreed to submit written argument respectively by 1 and 8 August 2018 and reply, if needed, by 10 August 2018. I will then issue my award on or before 24 August 2018.
ISSUE TO BE DECIDED:
3. I have to decide whether the Respondent committed an unfair labour practice related to benefits and if so whether the Applicant is entitled to compensation.
BACKGROUND:
4. The Respondent employs the Applicant as a Resource Educator at Metro Central Education District.
5. On 24 May 2017, the Applicant booked off sick until 2 June 2017 and returned to work on Monday, 5 June 2017. The Applicant only went to see a medical practitioner on 29 May 2017, who then booked her off sick for an unknown medical reason until 2 June 2017. The Applicant submitted an application for leave for the period (24 May 2017 to 2 June 2017) on 31 May 2017. On 9 June 2017, the Applicant’s manager did not recommend leave for 24 May 2017 and 26 May 2017, as the Applicant did not have sick certificates for those days.
6. On or about 15 September 2017, the employer deducted the amount of R2 391,43, in respect of the two days (24 May 2017 and 26 May 2017) as leave without pay, from the Applicant’s salary.
7. The Applicant referred an unfair labour practice dispute through her union (PSA) to the Council on or about 8 March 2018 concerning a required reimbursement for the leave without pay in respect of the amount in question. At conciliation on 28 March 2018, the Respondent was prepared to settle the matter on the basis that it would reimburse the Applicant with the amount of R2 391,43 on condition that the Applicant submit a written letter from the doctor that the Applicant was off sick for the two days in question. The Applicant obtained a letter from her doctor, but sent it to the wrong office and not to the Respondent’s representative in the matter. The Applicant requested arbitration on 2 May 2018.
8. The matter was then set-down for arbitration on 1 June 2018 before panellist, Commissioner Retief Olivier. On that day, the parties reverted to conciliation with consent. According to the Respondent, the Applicant then backtracked on her initial decision to settle on that basis referred to above. The Applicant wanted to proceed with the arbitration, as she required compensation. During the discussions off record, the Applicant allegedly threatened Commissioner Olivier that she would take the matter on review, if he did not award her compensation. Commissioner Olivier for that reason decided to recuse himself and issued a recusal ruling on 4 June 2018. The matter was then set-down before me on 25 July 2018 for arbitration.
9. The Applicant argued that the Respondent committed an unfair labour practice by unlawfully deducting the amount in question from her salary, as she was not required to submit a sick certificate in respect of the two days. The Respondent argued to the contrary.
EVIDENCE AND ARGUMENT BY THE APPLICANT:
10. The Applicant submitted a common bundle of documentary evidence and lengthy written argument. I decided to summarise the evidence and argument as far as I consider relevant for the purpose of my award.
11. The Applicant submitted that in terms of the leave policy, she was not required to submit a sick certificate for the two days (24 and 26 May 2017). The employer was therefore grossly unfair by deducting the money from her salary to punishing her after she made a protective disclosure regarding corruption, racism, discrimination, and etcetera.
12. The Applicant further submitted that an employer is not entitled deduct the money from her salary. In terms of section 34 of the Basic Conditions of Employment Act 75 of 1997 as amended (BCEA), the employer may not make any deductions from an employee’s remuneration, unless the employee agreed to that in writing. Further, the Respondent failed to follow a fair process before it decided to deduct the money from her salary. The Respondent did not give the Applicant an opportunity to state her case before its decision. The Applicant also argued that the Constitutional Court in case CCT6/17 decided on 7 December 2017 declared section 38 of the Public Service Act of 1994 as amended unconstitutional. Section 38 relates to deductions from an employee’s salary. Therefore, the Respondent was not entitled to make the deduction from her salary.
13. The Applicant argued that 25 May 2017 was Ascension Day and a school holiday, therefore she did not require a sick certificate for the two days in question, as she was not absent for more than two days.
14. The Applicant further submitted that the gross unfair conduct of the employer, caused serious ramifications in that it crippled her financially for a period of 13 months, until the employer eventually paid the amount of R2 391, 43 into her bank account on 15 June 2015. The action of the employer also caused her great undue psychological trauma, stress, anxiety, high blood pressure followed by depression.
EVIDENCE AND ARGUMENT BY THE RESPONDENT:
15. The Respondent also submitted common bundles of documentary evidence in support of its argument.
16. The Respondent submitted that 25 May 2018, the day in between the two days in question, was a normal working day in the organisation for other institutions of the Department. The Applicant applied for sick leave for the period concerned and only went to a doctor on 29 May 2017, 5 calendar days after she suffered from her illness. The Department therefore lawfully implemented unpaid leave for two days (24 and 26 May 2017), as the Applicant absented herself from work for more than two consecutive days without a sick certificate for the tow days in question.
17. At conciliation, the parties reached a oral agreement that the Applicant would be reimbursed with the amount in question, if she provided a letter from her doctor to confirm that she was ill on the two days in question. However, at arbitration the Applicant deviated from the proposed settlement and insisted to proceed with arbitration, as she required compensation.
18. Once the doctor’s letter came to the attention of the Respondent, it decided to pay the amount of R2 391, 43 into the Applicant’s bank account on 15 June 2018. The Respondent therefore argued it did not commit an affair labour practice that merited compensation, as the Applicant suffered no damage.
ANALYSIS OF THE EVIDENCE AND ARGUMENT:
19. The facts stated in the Background above were common cause between the parties. The parties further submitted common bundles of documents as documentary evidence in support of their arguments.
20. Section 23(1) of the BCEA states “An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.” The employer’s policy referred to in the documentary evidence as Personnel Administrative Measures (PAM) has a similar provision that states in Chapter H5.2.5.1 as follows “Educators who apply for three or more sick leave days must submit a medical certificate.” The general rule of interpretation requires that ordinary words must be given its ordinary meaning, unless it leads to absurdity or ambiguity. To my mind, I do not have to give an alternative interpretation to the words quoted from BCEA and PAM. It is therefore clear that if an educator is absent for three or more days, a medical certificate is required. In the instant case, the Applicant booked off sick from 24 May 2017 and only returned to work on 5 June 2017. The Applicant’s doctor confirmed this in the letter dated 3 April 2018, submitted as documentary evidence. Therefore, the Applicant was indeed unfit to work for the entire period concerned. This was not a case where the Applicant was unfit to work for one day and then again became unfit to work two days later on 26 May 2017. The Applicant on her own version was unfit to work and absent from work for more than two consecutive days. In other words, the Applicant according to her doctor was unfit to work for the entire duration of her absence because of her illness. Accordingly, the Applicant required a sick certificate for the entire period concerned. In my view, the employer at the time correctly deducted the amount in question from the Applicant’s salary on or about 15 September 2017, as it was not in possession of a sick certificate for the two days in question.
21. The Applicant’s argument that 25 May 2017 was an official school holiday, could not carry weight. The Applicant could not dispute the fact that 25 May 2017 was not an official school holiday, as it was a working day for other parts of the organisation. Be it as it may, the Applicant in totality was absent from work for more than two consecutive days or three or more days due to illness. On that basis, the Applicant was required to submit a sick certificate for the entire period concerned and could not rely on fragmented calculation of the days of illness. Section 23(1) of the BCEA does not talk about “working days”. It clearly refers to “absent from work for (my emphasis) more than two consecutive days” due to illness.
22. It was an undisputed fact that the employer endeavoured more than once at conciliation and at the previous arbitration, to settle the dispute. Once the Applicant’s doctor’s letter eventually came to the Respondent’s attention it reimbursed the Applicant for the amount in question. The Applicant however changed her mind not to settle and persisted to proceed with arbitration, because she wanted compensation in addition to the recovery of the amount in question. By law, the Applicant is entitled to compensation if she could prove and unfair labour practice as referred to in section 186 of the Labour Relations Act 66 of 1995 as amended (LRA). It is trite law that the amount of compensation to be determined by the circumstances of each case. I however find that the Respondent did not commit an unfair labour practice, as it was entitled by law not to pay the Applicant for the two days in question in absence of the sick certificate. Section 34 of the BCEA referred to by the Applicant was not applicable in the instant case, as it relates to a debt or a loss or damage. Further, section 38 of the Public Service Act referred to by the Applicant was also not applicable, as it relates to recovery of monies wrongly paid to an employee, which was not the case.
23. Even if I have had to find for argument’s sake that the employer committed an unfair labour practice when it deducted the amount in question from the Applicant’s salary, I do not find this to be a case that required compensation. The Respondent attempted to remedy the situation. The Applicant reluctantly and persistently wanted to pursue the matter and changed her mind at the initial arbitration on 1 June 2018. That explains why the Applicant continued with the arbitration hearing on 25 June 2018 in the absence of her union (PSA). The Applicant followed her own mind and allegedly incurred legal costs to seek advice. She was the cause of her own peril and only has herself to blame.
24. On a balance of probabilities, I find it unlikely that the amount in question crippled the Applicant financially and caused undue psychological trauma, stress, anxiety, high blood pressure, and depression. The Applicant did not present medical evidence in support of her argument. In my view, it rather seemed that the Applicant’s medical condition was caused by some stressors other than the meagre amount of R 2 391, 43. It appeared from the documentary evidence that the real reason for her claiming compensation was, because of the protected disclosure that she reported to the employer. I quote from the Applicant’s written submission that reads “This grossly Unfair Act by the Respondent, is what the Applicant contents now, was done by the Respondent solely for the purpose of punishing the Applicant after she made a protective disclosure, … regarding corruption, racism, discrimination …” . To my mind, that further explains why the Applicant was so desperate to get compensation and why she insisted on an award of 12 months’ salary. The Applicant’s protected disclosure was referred to the Minister of Education for its decision. The outcome of was attached in the common bundle of documents. The finding states under conclusion, “Based on the above, I can find no evidence of corruption and ‘covering up’ at Ned Doman. The allegations you are making can have serious consequences for people and I trust that you will now desist from making them.” The Minister’s response also referred to a meeting with the Applicant on 4 July 2018 in respect of the protected disclosure. To my mind, the Applicant’s protected disclosure therefore did not relate to her manager’s decision on 9 June 2017 not to recommend the Applicant’s sick leave for the two days in question. He made the decision prior to her disclosure. I therefore find that the Applicant’s allegation of ulterior motive was without substance or proof thereof.
25. In respect of the issue of costs, I find that the Applicant was frivolous and vexatious, when she persisted to continue with arbitration, knowing that her union did not agree with her reasoning and therefore decided to represent herself at the second arbitration. The Respondent endeavoured more than once to remedy the situation, but could not do so due to the Applicant’s persistence to claim compensation. At the initial arbitration hearing, as is evident from Commissioner Olivier ruling, he tried to explain the situation to the Applicant whereafter she threatened him with a review application. Therefore, under the circumstances I deem it necessary to award costs against the Applicant.
AWARD:
26. In the premises, I make the following award:
(1) I find that the Applicant did not discharge the onus of proving and unfair labour practice relating to benefits.
(2) I order the Applicant to pay the arbitrator’s fee for 25 July 2018.
ADV. J.P. Hanekom