PSES 719-18/19 KZN
Text
PSES 719-18/19 KZN
Text
Award Date:
20 September 2019
Case Number: PSES 719-18/19 KZN
Province: KwaZulu-Natal
Applicant: NAPTOSA obo Hafiz W
Respondent: Department of Education Kwa-Zulu Natal
Issue: Unfair Dismissal - Incapacity - Poor Health
Venue: Department of Education Pietermaritzburg, KwaZulu Natal.
Award Date: 20 September 2019
Arbitrator: Tyron Baker
Panelist: Tyron Baker
Case No: PSES 719-18/19 KZN
Date of Award: 20 September 2019
In the Arbitration between
NAPTOSA obo Hafiz W
(Union/Applicant)
And
Department of Education, KZN
Respondent
Union/Applicant’s Representative : Ms I Dhanook
Telephone : (031) 563 1966
Telefax : (031) 563 1611
Email : michelle@naptosa.org.za
Cell : 076 141 2792
Employer’s Representative : Mr S Daniso
Telephone : 033 846 5461
Telefax : 033 846 5461
Email sinethemba.daniso@kzndoc.gov.za
Cell : 083 350 0721
DETAILS OF HEARING AND REPRESENTATTIONS
1. An alleged unfair Labour Practice dispute was referred to the Education Labour Relations Council in terms of section 186(2) of the Labour Relations Act 66 of 1995 as amended.
1.1 The arbitration took place on the 24 July 2019 and 14th September 2019, at the Department of Education Pietermaritzburg, KwaZulu Natal.
2. The Respondent was represented by Mr S Daniso, its Labour Relations personnel and the Applicant by Ms I Dhanook from NAPTOSA, an Labour Organisation.
3. The proceedings were recorded manually and electronically.
4. All evidence was considered and taken into account, only relevant evidence was noted.
5. By agreement with both parties, Closings Arguments were to be submitted, via the Education Labour Relations Council within 7 (seven) days from the conclusion of the arbitration, being the 10th of September 2019.The Department of Education did not submit its closing by this date.
ISSUE TO BE DECIDED
6. The issue to be decided is whether or not, the Department of Education committed an unfair Labour Practice in terms of section 186(2)) of the Labour Relations Act 66 of 1995 as amended, by.
6.1 Disapproving the Applicant’s Temporary Incapacity Leave for the periods of 15th May to 26 June 2015 and 15 August 2015 to 2 October 2015.
6.2 Deducting a sum of R26 262.83 unlawfully from the Applicant’s salary, 3 (three) years later.
6.3 The relief sought by the Applicant is that the unlawful deducted sum of R26 262.83 be reimbursed to her and her Temporal Incapacity Leave be granted.
BACKGROUND TO THE DISPUTE
7. The Applicant Ms Waseela Hafiz is a permanent employee of the Department of Education (KZN).The Department of Education provides employment to its Educators, nationally to educate its learners
8. She has 16 (sixteen) years of service. She is currently teaching at M.L.Sultan Secondary school in Pietermaritzburg. She currently earns a salary of R15000.00 per month.
9. During the period of the period of 15 May 2015 to 26 June 2015 and 15 August to 2 October 2015 she was temporary incapacitated.
10. On both occasions when she returned to school, she submitted two separate applications, applying for Temporary Incapacity Leave, due to her normal sick leave period being exhausted. These applications were submitted during the year of 2015 as per the periods of absence, together with the necessary medical supporting documents.
11. The Applicant received the first communication from the Department of Education in January 2018. She acknowledged receipt of this correspondence and signed it in January 2018. This letter was given to her by her School Principal. The contents of this letter disapproved the periods of the Temporary Incapacity Leave periods that she had applied for.
12. In May 2018, the Applicant received a letter from the Department of Education dated the 25th May 2018, (Page 13) Bundle A, informing her that she was over paid by an amount of R26 262.83 (Twenty Six Thousand Two Hundred and Sixty Two Rand) and that this money would be recovered from her salary in monthly installments of R4800.00 (Four Thousand Eight Hundred) per month. The reason for the deduction was cited as an overpayment of salary for the Temporary Incapacity Leave disapprovals.
13. In September 2018, the Applicant received another letter from the Department of Education informing her that the application for Temporary Incapacity Leave has not been approved citinging reasons as Mismanagement of Sick Leave.
14. The Applicant after receiving the letter for the recovery of overpayment and the deduction that was to be made immediately submitted supporting medical documents to the Health Risk Manager. She also lodged a grievance in July 2018.
15. The Department of Education without responding to the Applicant’s grievance, began deducting the R4800.00 (Four Thousand Eight Hundred) from the Applicant’s salary, as from the 15th June 2018, for 6 (six) months.
16. The Applicant received an outcome of her grievance on 27 November 2018, informing her that the grievance has been denied. By then the Applicant had already lodged a dispute with the council.
SURVEY OF EVIDENCE AND ARGUMENT
17. In terms of the Department of Education’s internal policy, it has in place, a document called PILLIR, which specifically deals with the application, approval, disapproval and assessments of all types of Temporary Incapacity leave, including time frames that the Department must abide by.
18. Clause 7.2.9 of the PILLIR Policy stipulates the following:
18.1 “ The employer must within 30 days after the receipt of both the form and medical certificate referred to in paragraphs 7.1.4 and 7.1.5 approve or refuse temporary incapacity leave granted conditionally. I making a decision, the employer must apply his mind to the medical certificate/ medical information/records and all other relevant information available to the employer and based thereon approve or refuse temporary incapacity leave granted conditionally on conditions that the employer may determine, e.g. to return to work, etc.” (Bundle A page 2)
19. Both parties submitted bundles of documents Bundle “A” (Applicant) and Bundles “B” and “C” (Respondent) both parties accepted one another’s bundle as what they purported to be.
APPLICANT’S EVIDENCE
The Applicant Ms Waseela Hafiz testified in English under oath:
20. She stated that once the 30 days of sick leave of an educator lapses or is exhausted, the educator can apply for Temporary Incapacity Leave.
21. She submitted all relevant medical certificates after returning to school and completed all the relevant documentation on her return to School.
22. She said that she did not receive any response from the Department of Education within the 30 day prescribed period as per the PILLAR policy of the Department of Education. This is in view of the outcome.
23. She only received an outcome of the disapprovals of her application for the Incapacity Leave 3 {three} years later in January 2018.
24. After receiving the outcome, she immediately lodged an internal grievance, which she typed out in the year of July 2018
25. She was informed by the Human Resource Department that she had to complete a formal grievance, of which she was not aware of, this she complied with. She only received an outcome of her grievance in November 2018.
26. The Department of Education made unlawful deductions from her salary. The Applicant denied ever receiving any outcome of from the Department of Education in September 2016. During cross- examination she maintained her version of events and did not contradict herself.
RESPONDENT’S EVIDENCE
The Respondent witness Nokhthula Khumalo testified in English under oath:
28. She testified that she has 24 years of service with the Department of Education. She is the principal officer of the leave section.
29. She is familiar with the procedure of Temporary Incapacity Leave and the outcomes thereof.
30. She testified that the Applicant only submitted her application on 15 September 2015 and as result of this, the application was processesed late.
31. Temporary Incapacity leave is granted after the employee’s 36 days sick leave cycle is exhausted.
32. She testified that the Applicant submitted her documentation timeously with regards to the 1st application for temporary incapacity leave.
33. The second temporary incapacity leave application required further medical information for the matter to be further investigated, and was therefore not granted. No written reasons was given to the Applicant.
34. She testified that the Department of Education did receive the Applicant’s grievance and forwarded it to the Human Resource Department for further processing. The outcome of the Applicant’s grievance was denied. It was denied later.
35. She further testified that the outcome of the Applicant’s 2 periods for the application for the Temporary Incapacity Leave was denied, citing the reasons for both as Mismanagement of Sick leave.
36. She testified that the denial for the two periods was because the policy PILLAR investigated all types of leave in terms of its vision, and that the Applicant’s application was also denied based on the fact that the Applicant had previously taken incapacity leave with a four midweek break.
37. She testified that the outcome letter received by the Applicant in January 2018, was processed in September 2017.
38. She testified that the Department of Education was in line with its policies. An Applicant must apply for Temporary Incapacity Leave within 5 days after her return to school. This the Applicant did not do.
39. She testified that the Applicant receiving the outcome in January 2018, could have changed the outcome.
40. During cross- examination she conceded to the fact that the Department of Education, did not respond to the Applicant’s temporary incapacity leave applications within the prescribed 30 day period as per the PILLAR Policy.
41. She denied that the Department had any policy in place to respond to the Applicant.
42. She conceded to the fact that the Applicant only received an outcome in January 2018, when the document was presented to her with the Applicant’s signature on it, only received in January 2018.
43. She did not dispute, when it was put to her that a response from the Department of Education must be sent to the Applicant within 30 days.
44. She conceded to the fact that the Applicant was never hospitalized.
45. She testified that she could not confirm whether the Applicant received the Outcome Letter dated 30 August 2016 because it was sent via registered post and that the Department of Education had no proof thereof.
46. She conceded to the fact that the Department of Education was wrong in notifying the Applicant 3 years later of the Outcome of her application and recovery of salary 3 years later.
ANALYSIS OF EVIDENCE
47. Section 186 (2) of the Labour Relations Act 66 of 1995 as amended stipulates the following:
48. Unfair Labour Practive means any unfair act or omission that arises between employer and employee involving –
49. The PILLAR document POLICY AND PROCEDURE ON INCAPACITY LEAVE AND ILL RETIREMENT OF THE DEPARTMENT OF EDUCATION (NOVEMBER 2005) DETERMINED IN TERMS OF SECTION 3 (3) (C) of the Public Service Act 1994 by the Minister for Public Service and Administration & Stipulates the following at paragraphs 7.2.9
The employer must within 30 working days after the receipt of both the application form and medical certificate referred to in paragraphs 7.1.4 and 7.1.5, approve or refuse temporary incapacity leave granted conditionally. In making a decision, the employer must apply his mind to the medical certificate/medical information/records and all other relevant information available to the employer and based thereon approve or refuse the temporary incapacity leave granted conditionally, on conditions that the employer may determine, eg . to return to work, etc.
50. The onus of proof lied with the Applicant.
51. A common cause factor is that the Applicant did apply for Temporary Incapacity Leave for two periods during the 15th May 2015 to June 2015 and 26June 2015 to 2nd October 2015. This leave was disapproved by the Department of Education, three years later in January 2018.
52. The main issue in dispute, which the Department of Education relied upon was that it provided the Applicant with an outcome in a letter dated the 30th August 2016. The Department of Education relied on the fact that this letter was sent via registered post. The Applicant denied ever receiving this letter. I find that the Applicants version is more probable, as the outcome received by her was only signed in January 2018 by herself.
53. NAPTOSA obo of the Applicant argued that the Applicant only received this letter in January 2018, which was handed over to her by the school principal.
54. Bargaining Councils exist for several purposes. One such purpose is to remedy, by means of arbitration in accordance with the Labour Relations Act 66 of 1995 as amended, disputes concerning alleged unfair labour practices.
55. What must be decided in this case is whether the Department of Education failed to act in accordance with its own policy (PILLAR), and the its PAM document chapter 5.3 that regulates temporary incapacity leave.
56. NAPTOSA obo behalf of the Applicant’s submission argued that the delay of the Outcome to the Applicant was premised on the extensive delay between the Applicant’s application for temporary incapacity leave and the outcome.
57. In view of all the evidence heard by myself and documentary evidence produced i find that NAPTOSA has proved its case on a balance of probabilities.
58. My reasons for such a finding is based on the following:
The delay was unexplained. It was also an unjustified departure from the Respondent’s PILLAR document at paragraph 7.2.9 and was therefore unlawful, and the delay was not in line with the Labour Relations Act 66 of 1995 as amended. Labour disputes must be speedily resolved.
59. Paragraph 7.2.9 is clear in that the Employer must within 30 days after the receipt of both the application form and medical certificate referred to paragraphs 7.14 and 7.15 approve on refuse temporary incapacity leave granted conditionally.
60. The PILLAR policy was peremptory and that the Respondent was bound by the limitation set out in paragraph 7.2.9.
61. It failed to conclude the Applicant’s application in the shortest possible time.
62. The Applicant’s evidence was more reliable and the most probable version. She did not contradict herself in all the forms of evidence.
63. The Respondent witness on the other hand, conceded to the fact, that had the Department of Education complied with its own policy document, this arbitration would not have taken place. It was wrong of the Department of Education to take three years to finalize this matter.
64. In the matter of PSA and Another v PSCBC and Others (D751/09) [2013] ZALCD 3, Cele J at [20] in dealing with the failure of an Employer to render a decision regarding the approval or disapproval of TIL within the 30 day period, commented as follows: “The limited facts of this matter suggest that on 24 June 2008 the third respondent had finalized all investigations and had made its decision which it communicated to Ms Gouvea by a letter it issued to her on that day. She had to report back at work on 1 July 2008. From the given facts, as I understand them, a report was issued by the Health Risk Manager declining the application for a periodical temporary incapacity leave for 4 December 2007 to 30 June 2008. This report sought to have a retrospective effect. The consequence of a retrospective effect is that it amounts to an unreasonable and arbitrary exercise of discretion with unfair consequences to an employee. Nowhere in clause 7.5 of Resolution 7 of 2000, 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.”
Lallie J in Department of Roads and Transport v JC Robertson, PSCBC and Others (PR 40/14) [2017] ZALCPE held that ‘the arbitrator’s interpretation of clause 7.5.1.(b)’ which was based on the Gouvea judgment could not be faulted. Her reason was that when exercising discretion whether or not to grant TIL, the Applicant (in that case) was enjoined by PSCB Resolution 7 of 2000 to take into account the provisions of section 10(1) of Schedule 8 to the LRA. Lallie J, found that the interpretation that the arbitrator had given was consistent with the peremptory meaning of “shall” in clause 7.5.1.(b) of PSCB Resolution 7 of 2000. I am inclined to agree since we now have two judgments which show that the Applicant was seriously prejudiced in that the Respondent had not exercised its discretion properly, objectively, fairly and in a rational manner, and the fact that after 7, 6 years later it finally, at the third attempt approved of the application for ill-health retirement persuades me therefore that the Applicant is entitled to the relief, albeit substantially, she seeks.
65. In this instance the Respondent failed dismally to comply with its Bible (PILLAR). The excuse tendered that it had volumes of Temporary Incapacity Leave application it’s not substantively reasonable and equitable.
66. I further find that the requirement of promptness not only extends to the Department of Education’s proceedings, but also to their expeditious completion.
67. I find that the delay coupled with the insufficient explanation by the Department, is procedurally unfair. According to the PILLAR Policy of the Department, as well as the general understanding of procedural fairness under the Labour Relations Act 66 of 1995 as amended.
68. I find that the Department’s conduct amounted to a waiver of its rights to disapprove her two temporary incapacity leave applications and make unlawful deductions from her salary.
69. I find that the Applicant was not aware of the relevant grievance procedure and therefore cannot be faltered for filling a grievance at a later stage. The evidence of the Applicant was not challenged or placed in dispute by the Respondent.
70. In conclusion I find that the Department of Education acted in an unfair and unprocedural manner by finalizing the Applicant’s application some three years later.
71. Secondly making unlawful deductions from the Applicant’s salary is inconsistent with the Labour Courts Judgment in the matter of Public Servants Association of South Africa obo Ubogu v Head of Department. Department of Health, Gauteng[2016]ZALCJHB 544,in which Judge STEENKAMP, declared Section 38 of the Public Service unlawful and unconstitutional in respect of making deductions from a Public Service Employers salary without any proper procedure being followed.
72. With the same breath Section 34 of the Basic Condition of Employment Act 75 of 1997 prohibits deductions without any agreement, law, court order or arbitration award. The Applicant did not grant any permission for the unlawful deduction.
73. Lastly that the reason provided for the disapproval of the Applicant’s application is not a reasonable one. When the Department became aware of the fact the Applicant was mismanaging her sick leave, an incapacity enquiry ought to have being held.
AWARD
74. I make the following award:
74.1 The Respondent is directed to reimburse the Applicant an amount of R26 262.83 as it was unlawful and procedurally unfair.
74.2 The Respondent is directed to make such payment to the Applicant within seven working days upon receipt of this award.
74.3 The Respondent is further directed to approve the temporary incapacity leave for the periods of 15th May to 26 June 2015 and 15th August 2015 to the 2nd of October 2015.
74.4 These is no order as to cost.
T.M Baker
Panelist
Province: KwaZulu-Natal
Applicant: NAPTOSA obo Hafiz W
Respondent: Department of Education Kwa-Zulu Natal
Issue: Unfair Dismissal - Incapacity - Poor Health
Venue: Department of Education Pietermaritzburg, KwaZulu Natal.
Award Date: 20 September 2019
Arbitrator: Tyron Baker
Panelist: Tyron Baker
Case No: PSES 719-18/19 KZN
Date of Award: 20 September 2019
In the Arbitration between
NAPTOSA obo Hafiz W
(Union/Applicant)
And
Department of Education, KZN
Respondent
Union/Applicant’s Representative : Ms I Dhanook
Telephone : (031) 563 1966
Telefax : (031) 563 1611
Email : michelle@naptosa.org.za
Cell : 076 141 2792
Employer’s Representative : Mr S Daniso
Telephone : 033 846 5461
Telefax : 033 846 5461
Email sinethemba.daniso@kzndoc.gov.za
Cell : 083 350 0721
DETAILS OF HEARING AND REPRESENTATTIONS
1. An alleged unfair Labour Practice dispute was referred to the Education Labour Relations Council in terms of section 186(2) of the Labour Relations Act 66 of 1995 as amended.
1.1 The arbitration took place on the 24 July 2019 and 14th September 2019, at the Department of Education Pietermaritzburg, KwaZulu Natal.
2. The Respondent was represented by Mr S Daniso, its Labour Relations personnel and the Applicant by Ms I Dhanook from NAPTOSA, an Labour Organisation.
3. The proceedings were recorded manually and electronically.
4. All evidence was considered and taken into account, only relevant evidence was noted.
5. By agreement with both parties, Closings Arguments were to be submitted, via the Education Labour Relations Council within 7 (seven) days from the conclusion of the arbitration, being the 10th of September 2019.The Department of Education did not submit its closing by this date.
ISSUE TO BE DECIDED
6. The issue to be decided is whether or not, the Department of Education committed an unfair Labour Practice in terms of section 186(2)) of the Labour Relations Act 66 of 1995 as amended, by.
6.1 Disapproving the Applicant’s Temporary Incapacity Leave for the periods of 15th May to 26 June 2015 and 15 August 2015 to 2 October 2015.
6.2 Deducting a sum of R26 262.83 unlawfully from the Applicant’s salary, 3 (three) years later.
6.3 The relief sought by the Applicant is that the unlawful deducted sum of R26 262.83 be reimbursed to her and her Temporal Incapacity Leave be granted.
BACKGROUND TO THE DISPUTE
7. The Applicant Ms Waseela Hafiz is a permanent employee of the Department of Education (KZN).The Department of Education provides employment to its Educators, nationally to educate its learners
8. She has 16 (sixteen) years of service. She is currently teaching at M.L.Sultan Secondary school in Pietermaritzburg. She currently earns a salary of R15000.00 per month.
9. During the period of the period of 15 May 2015 to 26 June 2015 and 15 August to 2 October 2015 she was temporary incapacitated.
10. On both occasions when she returned to school, she submitted two separate applications, applying for Temporary Incapacity Leave, due to her normal sick leave period being exhausted. These applications were submitted during the year of 2015 as per the periods of absence, together with the necessary medical supporting documents.
11. The Applicant received the first communication from the Department of Education in January 2018. She acknowledged receipt of this correspondence and signed it in January 2018. This letter was given to her by her School Principal. The contents of this letter disapproved the periods of the Temporary Incapacity Leave periods that she had applied for.
12. In May 2018, the Applicant received a letter from the Department of Education dated the 25th May 2018, (Page 13) Bundle A, informing her that she was over paid by an amount of R26 262.83 (Twenty Six Thousand Two Hundred and Sixty Two Rand) and that this money would be recovered from her salary in monthly installments of R4800.00 (Four Thousand Eight Hundred) per month. The reason for the deduction was cited as an overpayment of salary for the Temporary Incapacity Leave disapprovals.
13. In September 2018, the Applicant received another letter from the Department of Education informing her that the application for Temporary Incapacity Leave has not been approved citinging reasons as Mismanagement of Sick Leave.
14. The Applicant after receiving the letter for the recovery of overpayment and the deduction that was to be made immediately submitted supporting medical documents to the Health Risk Manager. She also lodged a grievance in July 2018.
15. The Department of Education without responding to the Applicant’s grievance, began deducting the R4800.00 (Four Thousand Eight Hundred) from the Applicant’s salary, as from the 15th June 2018, for 6 (six) months.
16. The Applicant received an outcome of her grievance on 27 November 2018, informing her that the grievance has been denied. By then the Applicant had already lodged a dispute with the council.
SURVEY OF EVIDENCE AND ARGUMENT
17. In terms of the Department of Education’s internal policy, it has in place, a document called PILLIR, which specifically deals with the application, approval, disapproval and assessments of all types of Temporary Incapacity leave, including time frames that the Department must abide by.
18. Clause 7.2.9 of the PILLIR Policy stipulates the following:
18.1 “ The employer must within 30 days after the receipt of both the form and medical certificate referred to in paragraphs 7.1.4 and 7.1.5 approve or refuse temporary incapacity leave granted conditionally. I making a decision, the employer must apply his mind to the medical certificate/ medical information/records and all other relevant information available to the employer and based thereon approve or refuse temporary incapacity leave granted conditionally on conditions that the employer may determine, e.g. to return to work, etc.” (Bundle A page 2)
19. Both parties submitted bundles of documents Bundle “A” (Applicant) and Bundles “B” and “C” (Respondent) both parties accepted one another’s bundle as what they purported to be.
APPLICANT’S EVIDENCE
The Applicant Ms Waseela Hafiz testified in English under oath:
20. She stated that once the 30 days of sick leave of an educator lapses or is exhausted, the educator can apply for Temporary Incapacity Leave.
21. She submitted all relevant medical certificates after returning to school and completed all the relevant documentation on her return to School.
22. She said that she did not receive any response from the Department of Education within the 30 day prescribed period as per the PILLAR policy of the Department of Education. This is in view of the outcome.
23. She only received an outcome of the disapprovals of her application for the Incapacity Leave 3 {three} years later in January 2018.
24. After receiving the outcome, she immediately lodged an internal grievance, which she typed out in the year of July 2018
25. She was informed by the Human Resource Department that she had to complete a formal grievance, of which she was not aware of, this she complied with. She only received an outcome of her grievance in November 2018.
26. The Department of Education made unlawful deductions from her salary. The Applicant denied ever receiving any outcome of from the Department of Education in September 2016. During cross- examination she maintained her version of events and did not contradict herself.
RESPONDENT’S EVIDENCE
The Respondent witness Nokhthula Khumalo testified in English under oath:
28. She testified that she has 24 years of service with the Department of Education. She is the principal officer of the leave section.
29. She is familiar with the procedure of Temporary Incapacity Leave and the outcomes thereof.
30. She testified that the Applicant only submitted her application on 15 September 2015 and as result of this, the application was processesed late.
31. Temporary Incapacity leave is granted after the employee’s 36 days sick leave cycle is exhausted.
32. She testified that the Applicant submitted her documentation timeously with regards to the 1st application for temporary incapacity leave.
33. The second temporary incapacity leave application required further medical information for the matter to be further investigated, and was therefore not granted. No written reasons was given to the Applicant.
34. She testified that the Department of Education did receive the Applicant’s grievance and forwarded it to the Human Resource Department for further processing. The outcome of the Applicant’s grievance was denied. It was denied later.
35. She further testified that the outcome of the Applicant’s 2 periods for the application for the Temporary Incapacity Leave was denied, citing the reasons for both as Mismanagement of Sick leave.
36. She testified that the denial for the two periods was because the policy PILLAR investigated all types of leave in terms of its vision, and that the Applicant’s application was also denied based on the fact that the Applicant had previously taken incapacity leave with a four midweek break.
37. She testified that the outcome letter received by the Applicant in January 2018, was processed in September 2017.
38. She testified that the Department of Education was in line with its policies. An Applicant must apply for Temporary Incapacity Leave within 5 days after her return to school. This the Applicant did not do.
39. She testified that the Applicant receiving the outcome in January 2018, could have changed the outcome.
40. During cross- examination she conceded to the fact that the Department of Education, did not respond to the Applicant’s temporary incapacity leave applications within the prescribed 30 day period as per the PILLAR Policy.
41. She denied that the Department had any policy in place to respond to the Applicant.
42. She conceded to the fact that the Applicant only received an outcome in January 2018, when the document was presented to her with the Applicant’s signature on it, only received in January 2018.
43. She did not dispute, when it was put to her that a response from the Department of Education must be sent to the Applicant within 30 days.
44. She conceded to the fact that the Applicant was never hospitalized.
45. She testified that she could not confirm whether the Applicant received the Outcome Letter dated 30 August 2016 because it was sent via registered post and that the Department of Education had no proof thereof.
46. She conceded to the fact that the Department of Education was wrong in notifying the Applicant 3 years later of the Outcome of her application and recovery of salary 3 years later.
ANALYSIS OF EVIDENCE
47. Section 186 (2) of the Labour Relations Act 66 of 1995 as amended stipulates the following:
48. Unfair Labour Practive means any unfair act or omission that arises between employer and employee involving –
49. The PILLAR document POLICY AND PROCEDURE ON INCAPACITY LEAVE AND ILL RETIREMENT OF THE DEPARTMENT OF EDUCATION (NOVEMBER 2005) DETERMINED IN TERMS OF SECTION 3 (3) (C) of the Public Service Act 1994 by the Minister for Public Service and Administration & Stipulates the following at paragraphs 7.2.9
The employer must within 30 working days after the receipt of both the application form and medical certificate referred to in paragraphs 7.1.4 and 7.1.5, approve or refuse temporary incapacity leave granted conditionally. In making a decision, the employer must apply his mind to the medical certificate/medical information/records and all other relevant information available to the employer and based thereon approve or refuse the temporary incapacity leave granted conditionally, on conditions that the employer may determine, eg . to return to work, etc.
50. The onus of proof lied with the Applicant.
51. A common cause factor is that the Applicant did apply for Temporary Incapacity Leave for two periods during the 15th May 2015 to June 2015 and 26June 2015 to 2nd October 2015. This leave was disapproved by the Department of Education, three years later in January 2018.
52. The main issue in dispute, which the Department of Education relied upon was that it provided the Applicant with an outcome in a letter dated the 30th August 2016. The Department of Education relied on the fact that this letter was sent via registered post. The Applicant denied ever receiving this letter. I find that the Applicants version is more probable, as the outcome received by her was only signed in January 2018 by herself.
53. NAPTOSA obo of the Applicant argued that the Applicant only received this letter in January 2018, which was handed over to her by the school principal.
54. Bargaining Councils exist for several purposes. One such purpose is to remedy, by means of arbitration in accordance with the Labour Relations Act 66 of 1995 as amended, disputes concerning alleged unfair labour practices.
55. What must be decided in this case is whether the Department of Education failed to act in accordance with its own policy (PILLAR), and the its PAM document chapter 5.3 that regulates temporary incapacity leave.
56. NAPTOSA obo behalf of the Applicant’s submission argued that the delay of the Outcome to the Applicant was premised on the extensive delay between the Applicant’s application for temporary incapacity leave and the outcome.
57. In view of all the evidence heard by myself and documentary evidence produced i find that NAPTOSA has proved its case on a balance of probabilities.
58. My reasons for such a finding is based on the following:
The delay was unexplained. It was also an unjustified departure from the Respondent’s PILLAR document at paragraph 7.2.9 and was therefore unlawful, and the delay was not in line with the Labour Relations Act 66 of 1995 as amended. Labour disputes must be speedily resolved.
59. Paragraph 7.2.9 is clear in that the Employer must within 30 days after the receipt of both the application form and medical certificate referred to paragraphs 7.14 and 7.15 approve on refuse temporary incapacity leave granted conditionally.
60. The PILLAR policy was peremptory and that the Respondent was bound by the limitation set out in paragraph 7.2.9.
61. It failed to conclude the Applicant’s application in the shortest possible time.
62. The Applicant’s evidence was more reliable and the most probable version. She did not contradict herself in all the forms of evidence.
63. The Respondent witness on the other hand, conceded to the fact, that had the Department of Education complied with its own policy document, this arbitration would not have taken place. It was wrong of the Department of Education to take three years to finalize this matter.
64. In the matter of PSA and Another v PSCBC and Others (D751/09) [2013] ZALCD 3, Cele J at [20] in dealing with the failure of an Employer to render a decision regarding the approval or disapproval of TIL within the 30 day period, commented as follows: “The limited facts of this matter suggest that on 24 June 2008 the third respondent had finalized all investigations and had made its decision which it communicated to Ms Gouvea by a letter it issued to her on that day. She had to report back at work on 1 July 2008. From the given facts, as I understand them, a report was issued by the Health Risk Manager declining the application for a periodical temporary incapacity leave for 4 December 2007 to 30 June 2008. This report sought to have a retrospective effect. The consequence of a retrospective effect is that it amounts to an unreasonable and arbitrary exercise of discretion with unfair consequences to an employee. Nowhere in clause 7.5 of Resolution 7 of 2000, 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.”
Lallie J in Department of Roads and Transport v JC Robertson, PSCBC and Others (PR 40/14) [2017] ZALCPE held that ‘the arbitrator’s interpretation of clause 7.5.1.(b)’ which was based on the Gouvea judgment could not be faulted. Her reason was that when exercising discretion whether or not to grant TIL, the Applicant (in that case) was enjoined by PSCB Resolution 7 of 2000 to take into account the provisions of section 10(1) of Schedule 8 to the LRA. Lallie J, found that the interpretation that the arbitrator had given was consistent with the peremptory meaning of “shall” in clause 7.5.1.(b) of PSCB Resolution 7 of 2000. I am inclined to agree since we now have two judgments which show that the Applicant was seriously prejudiced in that the Respondent had not exercised its discretion properly, objectively, fairly and in a rational manner, and the fact that after 7, 6 years later it finally, at the third attempt approved of the application for ill-health retirement persuades me therefore that the Applicant is entitled to the relief, albeit substantially, she seeks.
65. In this instance the Respondent failed dismally to comply with its Bible (PILLAR). The excuse tendered that it had volumes of Temporary Incapacity Leave application it’s not substantively reasonable and equitable.
66. I further find that the requirement of promptness not only extends to the Department of Education’s proceedings, but also to their expeditious completion.
67. I find that the delay coupled with the insufficient explanation by the Department, is procedurally unfair. According to the PILLAR Policy of the Department, as well as the general understanding of procedural fairness under the Labour Relations Act 66 of 1995 as amended.
68. I find that the Department’s conduct amounted to a waiver of its rights to disapprove her two temporary incapacity leave applications and make unlawful deductions from her salary.
69. I find that the Applicant was not aware of the relevant grievance procedure and therefore cannot be faltered for filling a grievance at a later stage. The evidence of the Applicant was not challenged or placed in dispute by the Respondent.
70. In conclusion I find that the Department of Education acted in an unfair and unprocedural manner by finalizing the Applicant’s application some three years later.
71. Secondly making unlawful deductions from the Applicant’s salary is inconsistent with the Labour Courts Judgment in the matter of Public Servants Association of South Africa obo Ubogu v Head of Department. Department of Health, Gauteng[2016]ZALCJHB 544,in which Judge STEENKAMP, declared Section 38 of the Public Service unlawful and unconstitutional in respect of making deductions from a Public Service Employers salary without any proper procedure being followed.
72. With the same breath Section 34 of the Basic Condition of Employment Act 75 of 1997 prohibits deductions without any agreement, law, court order or arbitration award. The Applicant did not grant any permission for the unlawful deduction.
73. Lastly that the reason provided for the disapproval of the Applicant’s application is not a reasonable one. When the Department became aware of the fact the Applicant was mismanaging her sick leave, an incapacity enquiry ought to have being held.
AWARD
74. I make the following award:
74.1 The Respondent is directed to reimburse the Applicant an amount of R26 262.83 as it was unlawful and procedurally unfair.
74.2 The Respondent is directed to make such payment to the Applicant within seven working days upon receipt of this award.
74.3 The Respondent is further directed to approve the temporary incapacity leave for the periods of 15th May to 26 June 2015 and 15th August 2015 to the 2nd of October 2015.
74.4 These is no order as to cost.
T.M Baker
Panelist