Case Number: ELRC970-19/20FS
Province: Free State
Applicant: SAOU obo Agnes Maphaello Qabalatsane
Respondent: Department of Education Free State
Issue: Unfair Dismissal - Incapacity - Poor Health
Venue: The hearing was held via Zoom on 17 July 2020 and the proceedings were electronically recorded.
Award Date: 9 August 2020
Arbitrator: Jonathan Gruss
Panelist: Jonathan Gruss
Case No.: ELRC970-19/20FS
Date of Award: 9 August 2020
In the ARBITRATION between:
SAOU obo Agnes Maphaello Qabalatsane (Applicant)
Department of Education – Free State
Applicant’s representative: Ms Human
Respondent’s representative: Mr Gubuza
Respondent’s address: Private Bag X 20565,
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 24(5) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Section 33A and Clause 68 and 69 of the ELRC Constitution : Dispute Resolution Procedures (Collective Agreement No. 6 of 2016). The hearing was held via Zoom on 17 July 2020 and the proceedings were electronically recorded. The applicant, Agnes Maphaello Qabalatsane was represented by Ms Human from SAOU. The respondent, Department of Education – Free State was represented by M Gubuza, Deputy Director: Labour Relations. The parties agreed to submit written closing arguments by no later than 31 July 2020.
ISSUE TO BE DECIDED
2. The dispute concerns the interpretation application and enforcement of ELRC Resolution 7 of 2001 and Paragraph 5.3.10 of Personnel Administration Measurements (PAM) Chapter H in that:
(1) The respondent allegedly failed to within 30 days of receipt of the applicant’s temporary incapacity leave (TIL) application and medical certificates, approve or disapprove the TIL applied for that was conditionally granted while the application was being investigated, and
(2) The respondent failed to conduct an investigation in accordance with item 10(1) of Schedule 8 of the LRA into the nature and extent of the incapacity.
BACKGROUND TO THE ISSUES
3. The parties agreed as to the conduct of the proceedings, not to lead oral evidence and only present legal arguments based on the evidence bundle presented by the applicant.
4. The following facts are common cause:
4.1 The applicant after exhausting her statutory 36 days sick leave in a three year cycle, applied for temporary incapacity leave for the period 22 May 2018 to 25 May 2018, medical diagnosis hypertension and from 8 June 2018 to 15 June 2018, medical diagnosis depression.
4.2 She was only informed on 11 June 2019 that her TIL applications for the aforementioned periods were declined.
4.3 The reasons given by the respondent for refusing the TIL applications is that the submitted diagnosis for the period 22 May 2018 to 25 May 2018 was deemed vague and/or invalid, as it did not indicate the nature of severity of the impairment to justify absence from work. The applicant previously consulted with the specialist, due to the nature of the medical condition. There was however no indication of ongoing specialist involvement, and the period applied for, 8 June 2018 to 15 June 2018 could not be validated. The application for temporary incapacity leave did not contain sufficient information, as required, to validate the period applied for,.
4.4 Under the heading general comment as relates to reasons for refusing TIL, the respondent records that should related applications be submitted, a detailed medical report from the treating psychiatrist will be required, indicating a 5-axis 1DSM-IV-/DSM/5/ICD-10 diagnosis, report of special investigation performed, dates of consultation, treatment rendered and date of treatment augmentation, response to treatment, periods of hospitalisation, compliance, complications and prompt prognosis. A report from the treating psychologist should also be included, as per annexure G of PILIR. The applicant would be liable for any cost incurred. The applicant was informed that she had until 24 June 2019 to let the respondent know whether her unapproved incapacity leave must be allocated as unpaid leave. If she failed to notify the respondent on the requisite date, the unapproved incapacity would automatically be converted to unpaid leave. The applicant was further advised that should she not be satisfied with the respondent’s decision, she may lodge a grievance in terms of the standard internal dispute resolution procedures as PILIR and policy did not make provision for the appeal of any repudiation decision in respect of incapacity leave, outside that of the standard dispute resolution. The following documentation/information is required when a grievance is lodged, grievance form and new and material different medical evidence than that which accompanied the application under dispute. The respondent further recorded that firstly one should note that the manner in which an employee uses sick leave has a significant impact on the assessment of incapacity leave applications. It is thus always incumbent on one to utilise and manage one’s sick leave responsibly and with circumspect. Failure to do so may result in the declination of an incapacity leave application.
5. The applicant submits based on the letter of declination, that the respondent should have requested a second opinion. The respondent argued as relates to the interpretation that they did not have to send the applicant for a second opinion.
SURVEY OF ARGUMENTS
6. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the arguments contained and considered in deciding this matter.
7. The interpretation or application of the resolution requires one to interpret and apply clauses in the context of set policies and legislation rather than in a vacuum. The application dispute consists of two parts, whether the agreement applies and then whether that agreement was applied and complied with. Collective agreement 7 of 2001 applies to the applicant and the respondent failed to comply with the collective agreement. The purpose of that agreement, specifically paragraph 9 is to put in place leave measures when an employee’s normal sick leave has been depleted. Paragraph 9 of the agreement is supported by the PILIR policy document (See Bundle A pages 39-67) see chapter H Clause H 5.3 of the PAM document (See Bundle A pages 32-67). The issues to be decided are as follows, firstly, whether or not the respondent, interpreted and applied Annexure A paragraph 9 ELRC Resolution 7 of 2001, read together with Chapter H Clause H 5.3 of the PAM correctly. Secondly, the agreement refers to Item 10(1) of Schedule 8 of the LRA, which stipulates that incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in the circumstances, the employer should investigate the extent of incapacity or injury. If employees likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee.
8. Based on Item 10(1) the respondent is responsible to investigate the application, and would have had to investigate the extent of the applicant’s incapacity and ability to perform her normal duties, the possibility of adapting duties, and giving feedback within a reasonable time (30 days) from when the applicant’s application for TIL was submitted.
9. According to paragraph 9.3 of Resolution 7/2001, the Head of Department may require the educator to obtain a second opinion before granting approval for additional sick leave. The expenditure in this regard will be met from the department’s budget. Paragraph 9.4 provides further that the Head of Department may grant a maximum of 30 consecutive working days leave with full pay during which period an investigation must be conducted into the nature and extent of incapacity.
10. The applicant’s case is that the respondent firstly did not request a second opinion, it conducted the investigation therefore without a second opinion, did not make a well-informed decision, secondly, the respondent did not comply with the time frames of the agreement set for the investigation and feedback of the TIL application. The respondent had 30 days to inform the applicant whether the application for TIL was approved or not. The agreement states that the respondent must investigate and specifies a period of 30 working days.
11. The applicant was only informed on 11 June 2019 that her TIL application was declined, i.e. one year after she lodged her application. The respondent did not provide any reason for the delay and neither did the respondent inform the applicant of any delays. The applicant did sign the consent form to be subjected to an assessment by a second medical opinion and the employer never made use of this.
12. The unfairness is clear, the applicant has a right to fair administrative practice as stipulated in the bill of rights section 23. The purpose of laws, policies and collective agreement is to give effect to rights contained in the Constitution.
13. One of the reasons cited for the disapproval of her TIL application was that the information received was insufficient. Yet this was never communicated to the applicant. If the respondent did a proper investigation of the TIL application, surely they would have informed the applicant timeously that the information received was insufficient? How well then did the respondent apply its mind when taking the decision? Applicant is severely prejudiced in that the respondent already started deducting leave without pay based on a decision which was whimsical, since the finding was that insufficient information was provided and the diagnosis vague, yet no attempt was made to utilise the option of a second opinion or to inform the applicant that the information supplied was insufficient.
14. The respondent agrees that the collective agreement number 7 of 2001 applies to the applicant. The respondent submits that they followed the collective agreement 7 of 2001 to the letter when declining the application for TIL. They deny that they violated Chapter H of PAM and ERLC Resolution 7 of 2001. The HOD did an investigation as stipulated in Schedule 8 of the LRA. Section H5 .3 .2 of PAM states that incapacity leave is not an unlimited number of additional sick leave days at an employee’s disposal. It is additional sick leave granted conditionally at the employer’s discretion. This is supported by PILIR.
15. The resolution does not compel the respondent to respond to the applicant within 30 days after receiving the application, nor do the regulations compel the HOD to conditionally grant a maximum 30 working days TIL and conduct an investigation into the nature and extent of employee’s illness. The Head of Department did seek a second opinion by referring the matter to Thandile Health Risk Manager for advice. This was done with the consent of the applicant. The respondent paid the cost of the Health Risk Manager and did conduct an investigation as stipulated in Schedule 8 of the LRA.
16. The respondent could not make a decision before receiving advice from Thandile Health Risk Manager. Thandile took too long to provide the respondent with the requested advice. The situation was beyond the respondent’s control.
ANALYSIS OF EVIDENCE AND ARGUMENT
17 Clause 68 of the Dispute Resolution Procedures provides that a party to a dispute about the interpretation or application, or non-compliance of a collective agreement including the provisions of BCEA may refer such dispute to conciliation and arbitration in terms of these procedures.
18 Clause 69.1 also provides that the General Secretary may promote, monitor and enforce compliance with any Collective Agreement of the Council, within the scope of the Council and in terms of this section 33 and section 33A of the Act.
19 Clause 69.2 provides that a Collective Agreement of the Council is deemed to include:
19.1 Any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA; and
19.2 subject to clause 7.5, any other basic condition in the BCEA applicable to an employee falling within the scope of the Council where such employee's employer is a party to the Council;
20 Clause 69.3 provides that where the general secretary acts in terms of this clause 69, and the matter also involves the interpretation or application of a collective agreement, this clause 24 applies to the exclusion of clause 8.
21 Clause 69.5 further provides that the General Secretary may on his own discretion or on the request of a party refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be.
22 Clause 69.6 also provides that a panellist, conducting arbitration in terms of this clause 69 and section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.
23 Clause 69.7 provides that Section 138 of the Act, read with the changes required by the context, applies to any arbitration conducted in terms of this section.
24 The purpose ELRC Collective Agreement 7 of 2001 is to agree on new leave measures that will replace the leave regulations and to provide for the overtime remuneration of educators who perform childcare duties during periods of leave at institutions responsible for learners with behavior disorder.
25 Clause 9.1 to 9.6 provides that an educator who has exhausted her or his sick leave credit in a three year cycle and who, according to the relevant medical practitioner, requires to be absent due to incapacity that is not permanent may be granted additional sick leave with full pay. Such condition must have been certified in advance by the attending medical practitioner as a temporary incapacity, except where conditions do not permit. 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. The Head of Department may grant a maximum of 30 consecutive working days leave with full pay during which period an investigation must be conducted into the nature and extent of the incapacity. The investigation shall be conducted in accordance with item 10 (1) of Schedule 8 of the Labour Relations Act, 1995. On the basis of medical evidence, the Head of Department may approve the granting of additional sick leave days on conditions that she or he shall determine. If the educator is of the view that she or he has been unfairly treated as regards the granting of additional sick leave, she or he has a right to follow the grievance procedure and the relevant dispute resolution procedure in order to settle the matter.
26 PAM paragraphs H.5.3 (temporary incapacity leave) mirrors the temporary incapacity leave provisions as contained in ELRC Collective Agreement 7 of 2001 although additional prescripts and measures are provided for. For instance, paragraph H.5.3.10 provides that “the Head of Department (HoD) must, within 30 working days after receipt of both the application form and the medical certificate, approve or refuse temporary incapacity leave granted conditionally. In making a decision, the HoD must apply his or her mind to the medical certificate (with or without describing the nature and extent of the illness or injury) medical information/records (if the employee consented to disclosure), the Health Risk Manager’s advice, the information as applied by the educator and all other relevant information available to the HoD and based thereon approve or refuse the temporary incapacity leave granted conditionally, on conditions that the HoD may determine, e.g. return to work etc..”
27 There is no dispute that the determination made by the HoD declining temporary incapacity leave was made 1 year after the leave was sought. The respondent disputes that they were in breach of H.5.3.10 of PAM.
28 In the matter of PSA and Another v PSCBC and Others (D751/09)  ZALCD 3, Cele J at  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 finalised 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 a 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.”
29 Accordingly, the matter of in Public Service Association of SA & another v PSCBC, Gouvea & others is of no assistance to the applicant. In that she sought only 12 days leave, first 4 days and then 8 days. Therefore, had the employer complied with the 30 day period, the decision to decline leave would still have amounted to retrospective act. The fact that the respondent only responded after a 1 year to the applicant’s TIL applications did not prejudice the applicant, had the applicant for instance applied two periods of incapacity leave, each 30 days, not making a decision relating to the first period would result in an retrospective decision it would then have unfair consequences. This is not the case. The period that was declined represents a few days and the financial consequence is not that severe. Furthermore, a collective agreement may provide for a specific right, for instance should you be off sick for an IOD the employer must pay you until you recuperate or when you are no longer incapacitated or when you go on ill-health retirement. In such cases an employer does not have a discretion. The same can be said with an acting allowance. However when dealing with TIL an employee has a right to apply for TIL and have his or her application reasonably considered. An employee does not have a right to TIL.
30 At the commencement of the proceedings, during the narrowing of issues, based on the applicant’s representative’s reference to PILIR, I enquired as to whether they were aware of what is contained in annexure G of PILIR in that reference of the annexure is made by the respondent in declining TIL. It is clear that the respondent took issue with the fact that there was no indication of ongoing specialist involvement. I am in disagreement with the parties as it relates to the role of the Health Risk Manager. The Health Risk Manager is an independent natural or juristic person appointed by various employers within the public service to advise them on granting of incapacity leave and ill-health retirement of public servants. The policy provides that PILIR applies to all employees appointed in terms of the Public Service Act. Where persons employed in the service or state education institutions are not excluded from the provisions of PILIR, those provisions apply only in so far as they are not contrary to the law governing their employment. When referring to role players, the PILIR document provides that the Health Risk Manager is an entity of independent multidisciplinary medical experts, specialising in occupational medicine, appointed by the DPSA to a panel of accredited Health Risk Manager’s and individually contracted by the employer, to assess and provide advice to the employer in respect of employees’ applications for incapacity leave and ill-health retirement, within specified timeframes. The systems and administrative capacity for handling the volume of forms, as well as medical knowledge and experience to do incapacity leave and ill-health retirement assessments are the responsibility of the Health Risk Manager. The employer for purposes of PILIR, the departments and organisational components linked to schedule 1 to 3 of Public Service Act. The employer shall in terms of PILR be responsible to process applications and complete reports within specified timeframes. Where applicable, the employer will engage with the Health Risk Manager, the DPSA and GEPF. The employer shall, within the scope of his or her authority and with due consideration of the Health Risk Manager’s advice, take a final decision on an employee’s application for incapacity leave and/or ill-health retirement. Therefore, the investigation when dealing with incapacity leave envisaged in terms of Schedule 8, item 10(1) of the LRA’s Code of Good Practice is done by the Health Risk Manager. Therefore, should the Health Risk Manager seek a second opinion they would send an employee for second opinion.
31 Annexure G Guidelines for Incapacity Assessments provides that all incapacity application on psychiatric grounds should be assessed and treated by a psychiatrist. The important work done by general practitioners and/or clinical psychologist should not be undervalued, but a psychiatric condition, which is severe enough to warrant permanent incapacity should at least have been optimally treated by a registered psychiatrist. Psychiatrists should express their professional opinion only on functional impairment and not on incapacity. Confidentiality of medical reports should be maintained at all times. The psychiatrist according to the assessment guidelines, should peruse all medical documentation available, obtain all relevant collateral information needed, do a full standard psychiatric evaluation and make a diagnosis based on DSM IV guidelines and compile a complete clinical report, supply the maximal details on the topics discussed. The assessment guidelines further provide that it is vital that the psychiatrist informs the employee that the final decision on incapacity lies with the Head of Department, on the recommendation of the Health Risk Manager, and not with the doctor or the specialist. By referring to the criteria, the psychiatrist will be able to get a good indication of how the Public Service will approach an incapacity application with similar diagnosis. The Health Risk Manager will assess the capacity applications and will then be in a position to either make a recommendation to the Head of Department or call for another expert opinion, in cases where doubts may exist. In these doubtful cases, a psychiatrist appointed by the Health Risk Manager will be asked to review the case and give his or her objective opinion on the impairment only. It is therefore clear that based on PILIR it is a treating psychiatrist that is required to complete the assessment documentation and not a treating general practitioner.
32 The guideline also deals with incapacity based on cardiac disease and provides that this evaluation should include a complete systematic cardiological exam of the patient. Other systematic condition, which may contribute to employee’s current cardiac limitation, to be determined and mentioned in the final report. Certain routine special investigations are needed, as well as additional special investigations as indicated by specific criteria. The guidelines deal with complete cardiological examinations and prescribe special investigations. In dealing with cardiac evaluations reference is made to hypertension.
33 The respondent when declining the applicant’s TIL applications afforded the applicant an opportunity to reapply and indicated when submitting, that a detailed medical report from a treating psychiatrist will be required.
34 The applicant in seeking relief as an alternative, to a declaratory order, declaring the period that was unapproved as approved TIL with full pay requested that I impose a fine on the respondent for the failure to comply with the collective agreement.
35 Section 33A (7)(b) of the LRA provides that an arbitrator conducting an arbitration in terms of this section may make an appropriate award, including imposing a fine for the failure to comply with a collective agreement in accordance with subsection (13). Subsection (13) provides the Minister may, after consulting NEDLAC, publish in the Government Gazette, a notice that sets out the maximum fines that may be imposed by an arbitrator acting in terms of this section. A notice in terms of this paragraph may specify the maximum fine that may be impose for breach of a collective agreement not involving a failure to pay an amount of money; involving failure to pay any amount of money and for repeated breaches of the collective agreement.
36 Unfortunately, the ELRC Dispute Resolution Procedures that empowers Section 33A arbitration proceedings, do not provide for fines as contemplated in terms of Section 33A (7)(b) of the LRA and therefore I am not empowered to institute fines against the respondent.
37 The respondent, the Department of Education: Free State is in breach of Clause 9. 4 of ELRC Collective Agreement 7 of 2001 and clause H5.3.10 of PAM in that the respondent failed to approve or refuse the applicant’s temporary incapacity leave within prescribed 30 working days.
38 The applicant in terms of her referral is not entitled to any relief in that it has not been shown that she was prejudiced by the respondent not considering the TIL application within the period prescribed by the resolution.
Name: Jonathan Gruss