Case Number: PSES91-18/19FS
Province: Free State
Applicant: SAOU OBO A.E. Eksteen & 1 Other
Respondent: Department of Education Free State
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 11 September 2018
Arbitrator: LEKUKA MORE
Case Number: PSES91-18/19FS
Panelist: LEKUKA MORE
Date of Ruling: 11 SEPTEMBER 2018
In the Arbitration between
SAOU OBO A.E. EKSTEEN & 1 OTHER
DEPARTMENT OF BASIC EDUCATION, FREE STATE PROVINCE
DETAILS OF HEARING AND REPRESENTATION
1. The present dispute between SAOU on behalf of Ms. A.E. Eksteen and Ms. C.M. Dhlomo (hereinafter referred to as the Applicants) and Department of Basic Education, Free State Province (hereinafter referred to as the Respondent) was referred to Arbitration in terms of Council rules. At the Arbitration hearing which was held at the boardroom of the Respondent in Bloemfontein on 24 August 2018, the Applicants were represented by Ms. A. Bester whereas the whereas the Respondent was represented by Mr. V. Gubuza. The parties agreed on a written stated case and submitted written closing arguments.
ISSUE TO BE DECIDED
2. The issue to be decided is whether the Respondent complied with Resolution ELRC 7 7/2001 in refusing the Applicants application for Temporary Incapacity Leave (TIL).
BACKGROUND TO THIS MATTER
3. Much of the issues and the facts relevant to this case and contained in this background are common cause and save where indicated otherwise are not in dispute. I have crystallized the salient points submitted through both the Applicants as well as the Respondent’s submissions from their respective heads of arguments.
4. First Applicant, Ms. A.E. Eksteen was employed as an Educator at Clocolan Secondary School. She was a permanent Employee of the Respondent, Department of Basic Education, Free State.
5. Second Applicant, Ms. C.M. Dhlomo was also a permanent Employee of the Respondent at Thabo Mofutsanyane District office.
6. They both referred a dispute to the Council relating to Interpretation and Application of Collective Agreement, ELRC Resolution 7/2001.
7. The dispute of the first Applicant, Ms. A.E. Eksteen is in respect of her application for TIL for the period from 20/07/2015 until 07/08/2015.
8. The dispute of the second Applicant, Ms. C.M. Dhlomo is in respect of her application for TIL for the period from 17/11/2016 until 25/11/2016.
9. The Respondent declined both applications for Temporary Incapacity Leave of the Applicants. The Respondent advised Ms. Eksteen on 18 January 2018, of its decision after two years and four months. Ms. Dhlomo was advised that her application was declined on 24 April 2017, after four months.
10. The Respondent in all probability as its procedure forwarded the further particulars to Health Risk Management for review of the Applicants applications.
11. The primary issue in dispute is the Interpretation/Application of ELRC Resolution 7/2001.
12. I have considered all the evidence and arguments presented but because the Labour Relations Act, requires brief reasons in terms of Section 138(7) I have only referred to the evidence and arguments that I regard as necessary and relevant to substantiate my findings and the determination of the dispute.
SURVEY OF EVIDENCE SUBMISSIONS AND ARGUMENTS
APPLICANT’S VERSION AND TESTIMONY
13. Ms. A.E. Eksteen applied for TIL because she had already exhausted the 36 days sick leave. She duly applied on the prescribed forms of TIL and submitted all the necessary and relevant medical reports and certificates. She also signed the consent form given the Respondent permission to make contact with her Medical Practitioners. Ms. Dhlomo applied for TIL from 20 July 2015 until 07 August 2015. On 18 January 2018, she was informed by the Respondent that her TIL application was decline.
14. The Respondent failed to conduct the investigation within the prescribed time frames. The Respondent had thirty (30) days to inform the Applicants whether their applications for TIL were approved or not. The Applicants suffered prejudice as a result of the Respondent not complying with ELRC Resolution 7/2001, of expected to pay back the leave days given during TIL.
15. They seek an order which will compel the Respondent to approve the Applicants TIL applications and also order reimbursement of all monies deducted.
RESPONDENT’S VERSION AND TESTIMONY
16. The Respondent interpreted and applied the Resolution in question correctly. The two (2) Applicants were not entitled to go on a Temporary Incapacity Leave. The Applicants cannot be paid any form of compensation because they are not entitled to it.
17. The principle of applying for Temporary Incapacity Leave means that an Employee is temporarily incapacitated to come to work. It doesn’t give an option of coming to work if TIL is declined. The investigation and decision to be made within thirty (30) days was immaterial. The matter must be made dismissed with costs because it was a frivolous and vexatious claim.
ANALYSIS OF THE EVIDENCE AND ARGUMENTS
18. In respect of Interpretation of a Collective Agreement, our Courts have held that the ordinary and popular meaning of the words employed, is to be used and to consider the document as a whole when interpreting its provisions and where different parts appear contradictory, to reconcile these in line with the purpose/intention of the authors of the documents. One must attempt to derive the meaning of the Collective Agreement from the Agreement itself.
19. An Arbitrator is empowered to determine a dispute concerning the Interpretation or Application of a Collective Agreement by way an appropriate Award that gives effect to such Collective Agreement. This is also in line with an Employee’s Constitutional right to fair labour practices. An Arbitration hearing in terms of the Labour Relations Act, is an opportunity for aggrieved Employee to challenge a decision of the Employer and not a review of the Employer’s decision.
20. Interpretation dispute refers to the situation where the parties differ over the meaning of a provision of the Collective Agreement. Application dispute includes whether an agreement applies to the facts in question and the manner in which the agreement is applied or non-compliance.
21. It is trite Law that where an Employee is dissatisfied with the decision of an Employer concerning the Interpretation or Application of a Collective Agreement the Employee is confined to the remedy in terms of Section 138(9). In this case the Applicants formulated their claim as one of the Interpretation or Application of a Collective Agreement namely ELRC Resolution 7/2001 and complained of non-compliance by the Respondent with the Collective Agreement relating to Temporary Incapacity Leave.
22. The Clause in dispute is 9 of Resolution 7 of 2001 on New Leave Measures for Educators and Provision for the remuneration of Educators who perform child care duties during period of leave.
Clause 9.1 states that:- An Educator who has exhausted her or his sick leave credit in a three (3) year circle and who, according to the relevant Medical Practioners, requires to be absent due to incapacity that is not permanent may be granted additional sick leave with full pay.
Clause 9.2 states that: - Such a condition must have been certified in advance by the attending Medical Practioners, as a temporary incapacity except where conditions do not permit.
Clause 9.3 states that: - 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 Department’s budget.
Clause 9.4 states that:- The Head of Department may grant a maximum of thirty (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.
Clause 9.5 states that: - 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.
Clause 9.6:- If the Educator is of the view that she or he has been unfairly treated as regards to granting of additional sick leave, she or he has the right to follow the grievance procedure and the relevant dispute Resolution procedure in order to settle the matter.
23. It is common case that the Respondent did not act in accordance with item 10(1) of Schedule 8 of the Labour Relations Act or comply with the thirty (3) day time as prescribed in the Collective Agreement. Resolution 7/2001 is amplified by the Policy and Procedure on Incapacity Leave for Health Retirement (PILIR). PILIR requires that where TIL is refused the Employer must cover the period of absence by unpaid leave. In the present case, the decision to refuse or grant of TIL was made outside the prescribed period and not in compliance with R 7/2001.
24. The recovery of salary paid for “Conditional leave” initially granted, pending the outcome of an application for TIL, is done either by way of deductions from salary, capped leave or unpaid leave and it is linked with the decision to decline TIL and accordingly the dispute falls within the Interpretation or Application of R 7/2001. Therefore, the ELRC has jurisdiction to entertain a matter in respect of award of TIL, recovery of salary paid or appropriation of capped leave etc.
25. The TIL application of Ms. Eksteen was declined after two (2) years and four (4) months. Whereas the TIL application of Ms. Dhlomo was declined after four (4) months. No explanation was given regarding the delay of the investigations and also of the decision taken which was supposed to have been within thirty (30) days as envisaged in the Resolution 7/2001.
26. The Employer is obliged to be consistent with PILIR, approve or refuse the application within thirty (30) days of the receipt of the complete Application. The Applicants complaint in chief in this referral was that the Respondent allegedly failed to adhere to those procedures and or time frames as set in the relevant authorities and in turn resulted in severe prejudice to them. The Respondent did not have the discretion to deviate from the procedures set out in the Resolution and / or that set out in the determination and PILIR policies but was compelled to adhere to the procedures and time frames. In the circumstances where there was deviation, it can be argued that the Respondent was in breach of a Collective Agreement.
27. Based on the conspectus of evidence before me, I am obliged to agree with the Applicants.
28. In conclusion, I conclude that the Respondent has incorrectly applied/interpreted the provisions of Resolution 7/2001, read with the applicable directive and PILIR.
29. The Respondent, Department of Basic Education Free State Province, failed to comply with the provisions of ELRC Resolution 7/2001 in declining the Applicants, Ms. A.E. Eksteen and Ms. C.M. Dhlomo applications for Temporary Incapacity Leave for periods set out in paragraph seven (7) and eight (8) above.
30. The Respondent, Department of Basic Education Free State Province, is accordingly not entitled to deduct any monies from Ms. A.E. Eksteen and Ms. C.M. Dhlomo in respect of the period mentioned above and is ordered to repay all such amounts as may have been deducted in this regard.
31. The Respondent, Department of Basic Education, Free State Province, is further ordered to amend the Applicants personnel/leave file accordingly.
32. The Respondent, Department of Basic Education, Free State Province, is required to attend to paragraph 30 and 31 above within thirty (30) days of the date of this Award.
33. I make no order as to costs.