Case Number: PSES 332-19/20KZN
Applicant: R SAMPATH
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Durban Teachers’ Centre, Overport, Durban
Award Date: 21 October 2020
Arbitrator: Mr VF Mthethwa
Case No.: PSES 332-19/20KZN
In the matter between
R SAMPATH Applicant
DEPARTMENT OF EDUCATION Respondent
Panellist : Mr VF Mthethwa
Date of award: 21 October 2020
DETAILS OF HEARING AND REPRESENTATION:
1. This is the award in the matter between Roshen Sampath the Applicant, and the Department of Education, the Respondent. The hearing was conducted under the auspices of the ELRC at Durban Teachers’ Centre, Overport, Durban on 17 January 2020. The Applicant was present and he was represented by his attorney from Pratica Ramdhani Inc, Ms P Naidoo. The Respondent was represented by Mr M Bejanath. The parties agreed to submit a common cause statement signed by both parties and their respective heads of argument. The proceedings were digitally recorded.
BACKGROUND TO THE DISPUTE:
2. The Applicant has been employed by the Respondent as an educator since 02 August 2012. In November 2014 the Applicant was diagnosed with severe spinal steriosis. He underwent surgery in December 2014. The Applicant submitted a medical certificate booking him off work from 27 November 2018 to 14 December 2018. The Applicant applied for Temporary Incapacity Leave on 27 November 2018. On 10 April 2019 the Respondent advised the Applicant that his application for Temporary Incapacity Leave had been partly approved for 28 November 2018 to 04 December 2018. The Applicant’s salary was deducted in the amount of R 8352.35 in two instalments of R4163.00 with the first deduction taking place on 01 June 2019. Thereafter the Applicant lodged a grievance on 05 June 2019.
ISSUE TO BE DECIDED:
3. I am required to determine:
Whether the Respondent contravened paragraphs 9.1 to 9.6 of ELRC Resolution 7 of 2001 read with of the Policy and Procedure on Incapacity Leave and Ill-Heath Retirement (hereinafter “PILIR”) in that it failed to approve or deny the Applicant’s Temporary Incapacity Leave application within the prescribed 30 day period;
Whether the Applicant’s leave for the period 27 November 2018 to 14 December 2018 amounts to Temporary Incapacity Leave;
Whether the Applicant is entitled to reimbursement of the salary deductions which were effected as a result of the granting of unpaid leave.
SUMMARY OF THE SUBMISSIONS:
SUBMISSIONS OF THE APPLICANT:
4. The Applicant briefly submits that section 24(2) of the Labour Relations Act 66 of 1995 relates to the interpretation and application of collective agreements. This application specifically relates to interpretation and application of paragraphs 9.1 to 9.6 of ELRC Resolution 7 of 2001 read with PILIR.
5. In terms of ELRC Resolution 7 of 2001, read with PILIR, the employer is required to approve or refuse temporary incapacity leave within 30 working days of receipt of both the application form and medical certificate. Therefore the Respondent had 30 days within which to approve or deny his application for Temporary Incapacity Leave. However, it only informed him of its decision on 10 April 2019, three months after expiry of the 30 day period as prescribed. The Respondent thus failed to determine the Temporary Incapacity Leave application in time.
6. In Jeffrey Jaftha and Department of Education Eastern Cape under case number PSES828-16/17EC the arbitrator found that the Respondent had not applied the provisions of ELRC Resolution 7 of 2001 correctly in that it failed to inform the Applicant within the prescribed 30 day period whether his Temporary Incapacity Leave had been approved or refused. In Police and Prisons Civil Rights Union and Another v Department of Correctional Services and Another (2017) 38 ILJ 964 (LC) the court held that employees cannot be subjected to leave without pay or to monthly deductions from their salary (in order to recover paid salary where an application for Temporary Incapacity Leave is declined for a period they have been off work sick) or stoppage of salary unless the application is declined within thirty days or unless they have been given a date to return to work and they have failed to do so. In a subsequent decision the court in Department of Roads and Transport v JC Robertson and Others (PR40/14) 2017 ZALCPE agreed with the above sentiment.
7. Following the first deduction on 01 June 2019 he lodged a grievance against the ruling of the Respondent’s Health Risk Managers, Thandile Health Risk Management. He also submitted a detailed medical report to the Respondent bringing to its attention that he had a serious medical condition and that the condition warranted Temporary Incapacity Leave. In response to the grievance, on 04 July 2019, Thandile Health Risk Management informed him that the reason for partial approval of Temporary Incapacity Leave was due to sick leave mismanagement and no proof of hospitalisation or factors or justification in view of his sick leave profile.
8. The finding of Thandile Health Risk Management that the partial approval of Temporary Incapacity Leave was due to sick leave mismanagement and no proof of hospitalisation or factors or justification against his sick leave profile is contrary to the intention of ELRC Resolution 7 of 2001, specifically the option for the Head of Department to ask the educator to obtain a second opinion.
9. If the underlying medical condition is found not to warrant Temporary Incapacity Leave it must be determined what happens to the payments he received while awaiting the application outcome. However, the said determination does not relate to payments he received while the employer was delaying the determination of the application.
10. Had the Respondent conducted a thorough investigation into his medical condition it would have realised that it warranted the granting of Temporary Incapacity Leave. Furthermore, the Respondent failed to ask for further documentation from him. He suffered financial loss as a result of the Respondent’s failure to comply with ELRC Resolution 7 of 2001 read with PILIR.
11. He seeks conversion of the unpaid leave to Temporary Incapacity Leave and thus the reversal of all deductions which were made from his salary.
SUBMISSIONS OF THE RESPONDENT:
12. The Respondent briefly submits that the onus of proof of incapacity is on the employee and sufficient information should be submitted to validate applications for Temporary Incapacity Leave. However, the Applicant failed to submit sufficient proof in line with paragraph 7.1.5 of PILIR that he was too ill to perform his duties. The Health Risk Managers’ report shows that the Applicant failed to motivate his application for Temporary Incapacity Leave with all medical records.
13. Paragraph 7.1.1 of PILIR provides that temporary incapacity leave is granted at the discretion of the employer and the Applicant is aware of this. The Respondent exercised its discretion to grant the Applicant leave without pay on the advice of the Health Risk Managers.
14. PILIR informs the Applicant that the Respondent would conduct an investigation. Should the investigation show that Temporary Incapacity Leave is unwarranted, then the leave he enjoyed during the period of investigation will be converted to annual leave or leave without pay.
15. The Department went on recess on 14 December 2018. Therefore the Applicant also went on vacation leave when the Department closed on 14 December 2018. Therefore the argument of the Applicant that the Respondent failed to respond to his application within 30 days is incorrect.
16. The processing of Temporary Incapacity Leave is cumbersome and time consuming as it involves various departments prior to the Health Risk Managers assessing it and making a recommendation. The recommendation also proceeds through various departments before approval and communication of the final outcome to the employee. Therefore it was not possible to respond to the Applicant within 30 days.
17. The Health Risk Managers reported that the Applicant had abused his leave during the leave cycle. For example, the Applicant utilised sick leave of 3 days or less during mid-week periods and also took sick leave on days adjacent to week-ends, public holidays and annual leave. The reported leave abuse militated against the Health Risk Managers advising positively on his application.
18. While the Applicant claims that he has rights, section 28(2) of the Constitution of the Republic of South Africa, 1996 provides that the best interests of the child are of paramount importance in every matter concerning the child. The Applicant’s absence from duty deprived his learners of quality instruction time. His erratic absence from duty, i.e. mid-week absences and absences preceding or succeeding weekends, prevented the school from securing a substitute educator.
19. In POPCRU and Another v Department of Correctional Services and Another the court held that the Department’s delay in deciding the temporary incapacity leave application does not entitle the employee to remuneration if the Temporary Incapacity Leave is not approved.
20. The Applicant has a very poor leave record. Given the Health Risk Managers’ report, the Applicant’s poor leave management and the court’s finding in POPCRU and Another the Respondent was correct in granting the Applicant leave without pay.
ANALYSIS OF THE SUBMISSIONS:
21. Paragraphs 9.1 to 9.5 of ELRC Resolution 7 of 2001 provides the following:
“9.1 An educator who has exhausted her or his sick leave credit in a three year cycle and who, according to the relevant practitioner, requires to be absent due to incapacity that is not permanent, may be granted additional sick leave on full pay.
9.2 Such a condition must have been certified in advance by the 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.
9.4 The Head of Department may grant a maximum of 30 days consecutive working days 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.
9.5 On the basis of medical evidence, the Head of Department may approve the granting of additional sick leave days on conditions she or he may determine.”
22. Paragraph 126.96.36.199 (b) of PILIR requires the Health Risk Manager and the employer to “adhere to the guidelines for incapacity assessment in Annexure G so as to enhance objective, equitable and consistent advice and decision-making.” Guidelines in B1 of Annexure G require the assessment to include:
1.1. A backache questionnaire completed by the employee.
1.2. An attempt to measure the degree of pain of the employee by obtaining an accurate history of analgesic use. Inclusion of the Oswestry Pain Questionnaire to get optimal information on the degree of pain and its limitations on daily activities of the employee.
1.3. A complete systematic physical examination of the employee.
1.4. Completing a full medical report, which should meet the minimum standards as described.
23. The Health Risk Managers did not adhere to Annexure “G” as enjoined by PILIR in assessment of the Applicant’s application and in advising the Respondent. The Heath Risk Managers relied on the Applicant’s leave record in denying his application. Therefore the decision to deny the Temporary Incapacity Leave application was not based on medical evidence attainable through following the guidelines in Annexure “G”. In the absence of medical evidence in assessment of the application as required in Annexure “G”, I accordingly find that the Applicant’s leave for Temporary Incapacity Leave in respect of the period 27 November 2018 to 14 December 2018 should not have been denied. Therefore the Applicant, having exhausted all sick leave credit in the three year cycle, should have been granted additional sick leave in accordance with paragraphs 9.1 to 9.5 of ELRC Resolution 7 of 2001 read with PILIR. The Respondent contravened paragraphs 9.1 to 9.5 of ELRC Resolution 7 of 2001 read with paragraph 188.8.131.52 (b) of PILIR in that it failed to adhere to Annexure “G” in assessing the Applicant’s Temporary Incapacity Leave application. I accordingly find that the Applicant is entitled to reimbursement of the deductions which were made as a result the granting of unpaid leave.
24. Paragraph 7.2.9 of PILIR enjoins the employer to approve or deny the application for Temporary Incapacity Leave within 30 days. The Respondent submits that it did not exceed the 30 day period as it was on recess, and the Applicant was on leave, from 14 December 2018. However, the Respondent simultaneously submits that it was impossible to respond to the Applicant within 30 days since the processing a Temporary Incapacity Leave application is cumbersome and time consuming. I nonetheless find that the Respondent exceeded the 30 day period as it responded on 10 April 2019, long after it re-opened after the recess. Therefore the Respondent contravened paragraph 7.2.9 of PILIR in that it failed to respond to the Applicant’s Temporary Incapacity Leave application within the prescribed 30 day period. However the Respondent’s delay does not automatically entitle the Applicant to remuneration for the period during which the decision in respect of the Temporary Incapacity Leave was pending. All the same, the Applicant is entitled to remuneration for the said period since he was entitled to Temporary Incapacity Leave. Therefore there was no basis for the Respondent’s granting of unpaid leave to the Applicant as well as the concomitant deductions. I accordingly find that the Applicant is entitled to reimbursement in the amount of R8352.35 (Eight Thousand Three Hundred and Fifty Two Rand Thirty Five Cents).
25. I accept that the constitution guarantees the paramount importance of the child’s best interests. However that constitutional guarantee is not to be interpreted to mean that the Applicant was not entitled to Temporary Incapacity Leave, merely because of his leave record. The Applicant’s leave record may seem suspicious but that is all there is to it, a suspicion. No-one chooses when to be ill. Therefore a suspicious leave record is not a sufficient reason to decline a Temporary Incapacity Leave application, particularly since the Respondent did not gather medical information to support its finding in line with Annexure “G”.
26. The interpretation of Resolution 7 of 2001 read with PILIR favours the Applicant. The Applicant is entitled to Temporary Incapacity Leave in accordance with paragraphs 9.1 to 9.5 of ELRC Resolution 7 of 2001 read with paragraph 7.2 of PILIR for the period 27 November 2018 to 14 December 2018.
27. The Respondent is accordingly ordered to reimburse the Applicant for deductions which were made from his salary as a result of unpaid leave, in the amount of R8352.35 (Eight Thousand Three Hundred and Fifty Two Rand Thirty Five Cents), within fourteen days of the council delivering this award to the parties.
28. There is no order as to costs.