Case Number: PSES354-19/20KZN
Applicant: MOEKETSI SB
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Provision of Benefits
Venue: the offices of the Department of Education in Newcastle
Award Date: 20 December 2019
Arbitrator: NOZIPHO B KHUMALO
MOEKETSI S “the Applicant”
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the Respondent”
Case Number: PSES354-19/20KZN
Last date of arbitration: 19 NOVEMBER 2019
Date of award: 20 DECEMBER 2019
Closing Arguments: 06 DECEMBER 2019
NOZIPHO B KHUMALO
Education Labour Relations Council
261 West Avenue
Tel: 012 663 0452
Fax: 012 643 1601
DETAILS OF HEARING AND REPRESENTATION
1. The matter was set-down for arbitration in terms of Section 182(a) of the Labour Relations Act (LRA) at the offices of the Department of Education in Newcastle, on the 19 November 2019. Ms Xolile Thusi appeared for the Respondent whilst the Applicant, Mr B Moeketsi represented himself.
ISSUES IN DISPUTE
2. I have to decide whether Applicant was entitled to temporary incapacity leave TIL during the periods 02/05/2018 to 31/07/2018 and 01/08/2018 to 21/11/2018 or not.
3. I also have to decide on whether the Respondent acted unfairly or not by deduction an amount of R139 768-87 from the Applicant’s pension fund “GEPF”. Based on the finding decide on the appropriate relief, if any is applicable.
BACKGROUND OF THE DISPUTE
4. The Applicant was employed by the Respondent as an educator at Ncandu Primary School since June 2003.
5. The Applicant took temporary incapacity leave “TIL” from 02/05/2018 to 31/07/2018 and again from 01/08/2018 to 21/11/2018.
6. The Respondent declined both applications for TIL on the 12/03/2019.
7. The Applicant lodged a grievance and received the outcome thereof on the 19/11/2019.
8. An amount of R139 769-87 was deducted from the Applicant’s GEPF as a result thereof.
9. The Applicant prays that the Council finds that the Respondent was not entitled to deduct the amount of R139 769-87 from his GEPF benefits. He also prays that the Council also finds that he was entitled to TIL for the periods, 02/05/2019 to 31/07/2019 and 01/08/2019 to 21/11/2019.
10. Parties requested to argue on paper as the material facts of the dispute are common. Parties were requested to submit arguments on the 06/12/2019. The Applicant party submitted written arguments on the 02/12/2019 and the Respondent party failed to do so.
SURVEY OF ARGUMENTS & EVIDENCE
The Applicant’s submission
11. The Applicant argued that According to his treating Specialist Doctor Fatima Seedat medical reports, (see bundle marked Annexure ‘’A’’ page 1 to 47) the Applicant medical condition warranted Temporary Incapacity Leave (TIL). He was diagnosed with a Major Depressive Disorder rendering him unfit to perform his normal official duties, owing to the degree of incapacity precipitated by the schooling environment he worked under and being assaulted by a learner from same school.
12. In terms of Resolution 7 of 2000, Clause 7.5 of the resolution 7 of 2000, 7.5.1 Temporary Incapacity Leave:
(a) An Employee whose normal sick leave credit in a circle has been exhausted,
i. and who according to the relevant practitioner, requires to be absent from work due to disability which is not permanent may be granted sick leave on full pay provided that: -
(b) his or her supervisor is informed that the employee is ill, and
(c) a relevant medical practitioner has duly certified such a condition in advance as temporary disability.
(d) The Employer shall during 30 working days investigate the extent of the extent of the inability to perform normal official duties, degree of inability and the cause thereof. The investigation shall be in accordance with item 10.1 of Schedule 8 of the Labour Relations Act of 1995.
13. Therefore, if an Employee meets the requirements mentioned above (supra), then he or she is entitled to TIL. In terms of paragraph 9.3.23 of PILIR, grievances must be attended and resolved within 10 working days from the grievance date.
14. The Applicant lodged a grievance on the 19 March 2019, appealing the decision for declined TIL. The Respondent resolved the appeal/grievance on 19 November 2019, some nine months later. The Respondent only resolved grievance from 01 August 2018 to 21 November 2018, the decision on grievance taken during period 02 May 2019 to 31 July 2019 is still pending. Therefore, an appeal/grievance formally lodged within stipulated time frames, should suspend the decision taken pending the review of that appeal/grievance. The Respondent resolved the grievance some 9 months after it was lodged, which is highly prejudicial to the Applicant.
15. According to the Public Service Act 1994 (Proclamation No 103 of 1994) on Grievance rules for Public Services, paragraph C:
(a) A grievance must as possible be resolved by an employer and as close to the point of origin as possible.
(b) The employer must ensure that grievance is dealt with in a fair, impartial and unbiased manner, and that the principle of natural justice is observed.
(c) No employee should be victimised or prejudiced, directly or directly, as a result of lodging a grievance. The Applicant took TIL from 02 May 2018 to 31 July 2018 and subsequently from 01 August 2018 to 21 November 2018. The Respondent declined both TIL’s informing the Applicant on the 12 March 2019, some eleven months later.
16. According to Resolution 7 of 2001/PILIR and PAM, the Respondent is required to finalise the TIL application within 30 days.
17. Paragraph 7.2.9 of PILIR, The Employer must within 30 working days after the receipt of both the application form and medical certificate referred to in paragraph 7.1.4 and 7.1.5, approve or refuse temporary incapacity leave granted conditionally. In making a decision, the Employer must apply his/her mind to the medical certificate (with or without describing the nature and extent of incapacity) contemplated in paragraph 184.108.40.206, medical information/records contemplated in paragraph 220.127.116.11 (if the employee consented to the disclosure), the Health Risk Manager’s advice, the additional information supplied by the employee in paragraph 18.104.22.168 (if any) 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, e.g. to return to work, etc.
18. In PSA and Another v PSCBC and Others (D751/09)  ZACCD.3, where Judge Cele that was dealing with the failure of an Employer to render a decision regarding the approval or disapproval of TIL within 30-day period, he held as follows after TIL application was declined by the department. [Para 20] The report sought to have retrospective with unfair consequences to the employee. Nowhere in clause 7.5 of Resolution 7 of 2000, is there a suggestion that an employer may not grant further sick leave after the lapse 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 may be granted to the employee.
19. Furthermore, in the case of Department of Road and Transport and JC Robertson and PSCBC and Other (PR40/14) ZALCPE, Judge Lallie, held that:  The Arbitrator’s interpretation of clause 7.5.1. (b) of Resolution 71 2000 which is based on the decision of PSA HC Gouvea (supra) cannot be faulted. When exercising the discretion to grant or refuse TIL, the applications were enjoined by Resolution 7/2000 to take into account provision 10 (1) of schedule 8 of the Labour Relations Act 66 of 1995 as amended (the LRA). The interpretation the Arbitrator gave to clause 7.5.1 (b) is consistent with the letter and spirit of the LRA, his decision is not based only on giving a peremptory meaning to the word ‘’shall’’ in the clause 7.5.1 (b) of Resolution 7/2000. He therefore conducted the correct enquiry in the correct manner and reached a reasonable decision’’.
20. The Respondent therefore acted in a substantively unfair - and procedurally unfair manner when it deducted monies from Applicant G.E.P.F contributions or instructed the GEPF to do so.
ANALYSIS OF ARGUMENTS & EVIDENCE
21. In this case the following facts are common. The Applicant took temporally incapacity leave based on his specialist/doctor’s recommendation from 02/05/2018 to 31/07/2018 and 01/08/2018 to 21/11/2018. The Applicant had already exhausted his entitlement to sick leave before 02/05/2018. The Applicant submitted leave documents to his supervisor Mrs Kubheka who recommended the leave. The application was further forwarded to the health risk manager after the Applicant had already taken leave for the period 02/05/2018 to 31/07/2018. On the 12/03/2019 the Respondent declined the leave taken by the Applicant for the periods 02/05/2018 to 31/07/2018 and 01/08/2018 to 21/11/2018. The Applicant submitted a grievance on the 02/03/2019 and grievance was declined on the 13/03/2019. On the 19/03/2019, the Applicant submitted a doctor’s appeal to the Respondent and response was received by the Applicant on the 19/11/2019. The Applicant resigned on the 30/04/2019. An amount of R 139 769-87 from the Applicant’s pension benefit on the 03/07/2019.
22. In terms section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended, ‘’Unfair Labour Practice’’ means an unfair act or omission that arises between an employer and an employee involving-unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee. In respect of this case the Applicant’s contention is that the employer failed to resolve the grievance within ten (10) working days. Hence the Respondent’s act of deducting money from his pension fund, GEPF, amounted to an unfair labour practice relating to benefit.
23. It is common cause that the Applicant had already exhausted his entitlement to sick leave. The Applicant’s condition was recommended by a medical practitioner, Dr Seedat. Clause 9 of the ELRC Resolution 7 of 2001 to states:
9.1 An educator who has exhausted his/her sick leave credit in the 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 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.
24. In this case the Applicant’s Application was forwarded to the Health Risk Manager for further investigation and recommendation, however, this was done after the Applicant had already taken leave for the period 02/05/2018 to 31/07/2018. In terms of the Resolution the investigation should have been conducted during the thirty (30) days paid leave granted to the Applicant. I therefore find that the Applicant is entitled to his salary/remuneration for the leave period, 02/05/2018 to 31/07/2018. The leave taken during the period 01/08/2018 to 21/11/2018 was declined by the Respondent on the 12/03/2019 which is approximately 3 ½ months after the leave ended. This further suggests that the Respondent failed to comply with the prescribed period of 30 days.
25. It is also common that the Applicant lodged a grievance on the 12/03/2019 the Applicant lodged a grievance against the decision of the Respondent. The outcome thereof declining the grievance was on the 13/03/2019. This was followed by an appeal application by the Applicant’s specialist which response was received on the 19/11/2019. It is clear that the Respondent failed to deal with the matter within the prescribed time frame.
26. I am aware of the fact that the leave granted upon receipt of the Applicant’s application is conditional. However, in terms of Resolution 7 of 2001, an investigation should be dealt with within 30 days. Failure by the Respondent to deal with the application within 30 days does not render an entitlement to the Applicant. One must however not derail from the prescriptions of the Resolution and implementation thereof. In the circumstances, I make the following order.
27. The Respondent failed to comply with ELRC Resolution 7 of 2001 in declining the Applicant’s applications for incapacity leave, outside the 30 working days period as required in the Resolution.
28. The Applicant is entitled to temporary sick leave for the periods 02/05/2018 to 31/07/2018 and 01/08/2018 to 21/11/2018.
29. The Respondent is ordered to refund the amount of R139 769-87 deducted from the Applicant’s GEPF within 30 days of receipt of this award.
30. I make no order as to costs.
Commissioner: Nozipho B Khumalo