Case Number: ELRC633-19/20MP
Applicant: PSA obo Phumelele Brown
Respondent: Department of Higher Education and Training
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 26 October 2020
Arbitrator: Paul Phundu
Panellist: Paul Phundu
Case No: ELRC633-19/20MP
Date of Award: 26 October 2020
In the matter between:
PSA obo Phumelele Brown APPLICANT
Department of Higher Education and Training RESPONDENT
Union/Applicant’s representative: Mr Kobus Heineke
Respondent’s representative: Mr Sifiso Hadebe
DETAILS OF HEARING AND REPRESENTATION
 This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and herein after referred to as the LRA. The matter was set-down for arbitration in terms of Section 191(5) (a) of the LRA. The arbitration hearing proceeded as scheduled and was conducted virtually (online) on 6 October 2020, at 9:00 am in Pretoria. The Applicant, Phumelele Brown participated in the arbitration hearing and was represented by, Mr Kobus Heineke, Union Official from PSA. The Respondent, Department of Higher Education and Training participatedin the proceedings and were represented by, Mr Sifiso Hadebe, its Employee Relations Official.
 Pre-arbitration minutes’ form part of the record of this case. There was only two issue left for argument. Whether the applicant was entitled to special leave or not. And whether the respondent acted fairly or unfairly by regarding this leave as “leave without pay”. Over and above the parties’ opening statements and oral arguments in support of their respective positions, both parties agreed to further argue the above point by submitting written heads of arguments.
ISSUE TO BE DECIDED
 I am required to establish whether the respondent committed an unfair labour practice in relation to leave pay or not, if so, I must determine the appropriate remedy.
BACKGROUND TO THE ISSUE
 It is common cause that the Applicant is in the employ of the Department of Education as Manager for Work Integrated Learning since the 1 May 2009. On the 12th of April 2019, she applied for leave and the reason for her application for leave was that she had to attend to urgent private matters.
 It is also common cause that she was absent from work on 2 April 2019 till the 5th of April 2019. She only submitted her leave application form on the 12th of April 2020. It is common cause that her leave application was declined and she subsequently lodged a grievance. She was not satisfied with the results of her grievance hence she declared a dispute.
 The Applicant declared a dispute with the Bargaining Council, conciliation failed and a certificate of non-resolution of the dispute was issued. The matter thereafter proceeded to arbitration. The relief sought by the applicant was payment of her four days’ special leave which was deducted from her salary in the amount of R5.760,62.
ARGUMENT FOR THE APPLICANT
 The issue in dispute is about unfair labour practice – Benefits – Section 186(2)(a) of the act, Act 66 of 1995 as amended, whereby the Respondent disapproved the Applicants special leave and made an unlawful deduction of R5760.62 on her salary without her consent.
 The Applicant and Respondent had submitted a bundle of documents. The Applicant tendered a leave application form for 2 – 5 April 2019 that was forward to the Respondent on 12 April 2019.
 Respondent refused to grant the Applicant the leave and deducted an amount of R5760.62 as leave without pay.
 The Applicant went to Kwazulu Natal to take her daughter back to boarding school in Hluhluwe, approximately 500km from her place of work. Her vehicle broke down as the head gasket had blown. The vehicle needed to be towed to a garage for repairs on the 1st of April 2019 as it was unable to be driven. She was told by the garage, that the head needs to be taken off and needs to be schemed at the engineering works.
 The Applicant send an SMS message after she tried to called several times but no answer, to her Supervisor on 2nd April 2019, indicating that she will be unable to report for duty. The message read as follows: “Morning Mr Modishane, kindly be informed that I have a family crisis I am not able to report for work this week.”
 When the applicant returned to work she compiled a leave form as she did have credits available and submit it to her Supervisor on 12 April 2019, as he was not in the office from 8 to 11 April, to recommend and approve her leave.
 She applied for Special Leave in terms of the ELRC Resolution 7 of 2001 and leave policy as attached to the resolution as annexure A paragraph 15 that reads as follows:
“FAMILY RESPONSIBILITY LEAVE AND SPECIAL LEAVE FOR URGENT PRIVATE AFFAIRS
15.3 : An institution-based educator may, during a scheduled working period, be granted special leave to attend to an urgent private matter, the nature of which is such that it warrants such an educator’s absence from work.
15.5 The number of leave days taken in terms of sub-paragraphs 15.1 to 15.3 shall, in respect of an institution-based educator, not exceed 12 working days in an annual leave cycle.”
 She then realized that leave without pay was deducted from her salary without her knowledge and consent or agreement. The deduction also reflects on her payslip dated 2019/07/15. The amount deducted was R5760-62 for the period of 2019/04/02 to 2019/04/05.
 At the approval part of the leave form the following is indicated as the reason for disapproval: “There is no such a leave”
 The Applicant then filed a grievance as her leave as applied for was disapproved and leave without pay was unlawfully deducted from her salary without her consent.
 ELRC RESOLUTION 7 OF 2001 clause 8.1 The scope of the agreement indicates that the agreement applies to and binds: The employer and All the employees of the employer as defined in the Employment of Educators Act, 1998, whether such employees are members to trade union parties to this agreement or not”.
 The new leave policy provisions is attached as annexure A to the resolution. Paragraph 15 of the annexure A stipulates the following:
“FAMILY RESPONSIBILITY LEAVE AND SPECIAL LEAVE FOR URGENT PRIVATE AFFAIRS
An institution-based educator may, during a scheduled working period, be granted special leave to attend to an urgent private matter, the nature of which is such that it warrants such an educator’s absence from work.
The number of leave days taken in terms of sub-paragraphs 15.1 to 15.3 shall, in respect of an institution-based educator, not exceed 12 working days in an annual leave cycle.”
 The Labour Relation Act, Act 66 of 1995 as amended Section 185 (b) states that every employee has the right not to be subjected to unfair labour practice.
 In the Labour Court case J2185/2016 in the matter between The PUBLIC SERVANTS ASSOCIATION OF SOUTH AFRICA obo OLUFUNMILAYO ITUNU OBOGU and HEAD OF DEPARTMENT: DEPARTMENT OF HEALTH GAUTENG AND OTHERS an unlawful deduction was made from a member’s salary and the court indicated that it is unconstitutional. The court ordered the following:
‘It is declared that section 38(2)(b)(i) of the Public Service Act (Proclamation 103 of 1994) is unconstitutional as presently formulated, and accordingly falls to be interpreted in a manner which conforms with the provisions of the Constitution of the Republic of South African Act 108 of 1996 in particular sections 23(1), 25(1) and 34 thereof, to be read as follows:
“(b) been over paid or received any such other benefit not due to him or her-
(i) an amount equal to the amount of such overpayment shall be recovered from him or her by way of deduction from his or her salary of such instalments as the relevant accounting officer and employee, if he or she is in the service of the State, may agree, and failing agreement by way of legal proceedings, or if he or she is not so in service of the State, by way of deduction from any money owing to him or her by the State as the relevant accounting officer and former employee may agree, and failing agreement by way of legal proceedings, or partly in the former manner and partly in the latter;”
 The Applicant communicated her absence as she did have a vehicle breakdown that warrants her absence from work. She completed a leave form for special leave for urgent private matters as required by policy and submit it for approval to her Supervisor.
 The Applicant’s leave form according to her was unfairly disapproved by the Respondent claiming the special leave for urgent private matters did not exist.
 The leave policy annexure A as attached to ELRC Resolution 7 of 2001 makes provision for special leave for urgent private affairs to a maximum of 12 working days.
 The Respondent according to the Applicant then went further and unfairly deducted the sum of R5760-62 unlawfully without her consent and agreement. In the cited Labour Court case J2185/2016 as mentioned above the Respondent is prohibited to make deductions from an employee salary without an agreement. In the absence of an agreement, the Respondent must follow legal proceedings.
 The Applicant requires that the Special leave for urgent private matters be approved. That the amount of R5760-62 that was unfairly and unlawfully deducted from her salary be paid back.
ARGUMENT FOR THE RESPONDENT
 The Applicant has referred a dispute to the Education Labour Relations Council (“ELRC”) in terms of Section 186(2)(a) of the Labour Relations Act, No. 66 of 1995 (“Act”).
 The Applicant was appointed as Middelburg Campus Manager in May 2009 and her gross monthly salary is R45140.97. She was transferred as Manager to Extended Learning Unit as from June 2015
 The dispute which Applicant has referred relates to application of special leave as from 2nd April 2020 to 05th April 2020 which was subsequently approved and or granted without pay and as results, an amount of R5760.62 was recovered for such aforesaid period.
 On or around the 2nd April 2019, the Applicant allegedly sent a text message to the immediate supervisor, Mr JJ Modishane indicating her intention not to report for duty for a week due to family crisis. The supervisor disputed receiving such text massage on the alleged date, but only received such on the 29th July 2019.
 On or around the 12th April 2019, five (05) days from her return, the Applicant completed an application for leave of absence specified as special leave due to urgent private matters for the period between 2nd to 5th April 2019.
 On or around the 18th April 2019, the Applicant’s immediate supervisor did not recommend such application for leave of absence stating that such leave was taken without approval and or without prior notification.
 On or around the 23rd April 2019, the Applicant was issued with a communique advising her to liaise and or verify with Human Resource Unit whether the leave taken needed supporting documents and/or evidence by the office of the Principal as an ultimate approver of such leave.
 On or around the 28th April 2019, Mr CM Maimela, College Principal, approved the Applicant application for leave of absence without pay for the period between 2nd to 5th April 2019 in the absence of the above requested evidence and/or supporting documentation.
 Around early May 2019, the Applicant was engaged by Mr J Ngozo, former Human Resource Manager, pertaining to her application for leave of absence which was approved without pay and the consequences thereof.
 Subsequent to the above, the Applicant then requested a copy of such application for leave of absence which was approved without pay, indicating her desire to challenge such disapproval with her Union.
 Strangely, on or around the 13th June 2019, the Applicant depose to an affidavit indicating the circumstances that led her not to report for duty on the 2nd to 5th April 2019.
 In the absence of any grievance although alluded to by the Applicant , the Applicant’s leave of absence without pay was captured on the 24th June 2019 and approved on the 25th June 2019 on the Persal system for salary run of the 15th July 2019 in order to recover the amount of R5760.62 for the period of 2nd – 5th April 2019.
 On or around the 29th July 2019, the Applicant issued a formal grievance challenging that the leave without pay were deducted on her salary without notification nor agreement.
 On or around the 30th July 2019, the Respondent issued a response in that the Applicant was made aware as early as May 2019, that her application for leave of absence was approved without pay during her engagement with then HR Manager and her subsequent request to be provided with copy of application form.
 The Applicant elected not to lodge a grievance when she was made aware of such disapproval (early May 2019), but strangely chose to depose to an affidavit as soon as 13th June 2019 and further attached the requested supporting documents on her grievance dated 29th July 2019.
Whether the Applicant was consulted prior of deductions
 The Respondent submits that as indicated in this award, the Applicant has been engaged and or consulted prior to deductions of leave without pay prior being effected for 15th July 2019 salary run.
 In essence the Applicant was not paid for days she was absent. In reality we do not have a deduction but rather non-payment of days not worked.
 Employee is expected to be at work and to actually work in order to be remunerated. The fact that the employee was paid less than what he/she would ordinarily receive at the end of the month does not mean that a deduction was made from the employee's remuneration. The employee was merely paid for work done and not paid for work not done, resulting in a lesser salary
 The BCEA makes provision for the remuneration of employees in certain events when they are unable to work, such as sick leave, family responsibility leave, public holidays and annual leave. Section 23 of the act is very clear in that the employee must submit proof of incapacity to the employer upon his or her return to work. Failure to do so allows the employer to not pay an employee from his or her sick leave entitlement and to consider such a period of absence as unpaid if alternative entitlements such as annual leave is exhausted.
Whether the Leave Application procedure was followed
 The Respondent has adopted a Leave Policy in June 2011 as amended which stipulate types of Special Leave and does not provide for Urgent Private matters. The policy stipulates that;
 Form Z1 has to be completed when an employee takes leave. Prior to submitting the form to HR, the leave needs to be recommended and approved by the relevant supervisor/manager.
 Except in exceptional circumstances, such as death or serious illness in the employee may not refrain from reporting for duty unless an application for leave (Z1 Form) has been lodged in writing and he/she has been informed by the manager/supervisor that the application has been approved.
 No staff member may absent him/herself for any period during working day without competing a leave form and obtaining permission from his/her direct manager/supervisor. If this is not done out of the staff member’s accord, the direct manager/supervisor is authorised to complete a leave form on the staff member’s behalf. The onus remains on the absent staff member to submit documentation to substantiate why the (period(s) of absence should not be leave without pay.
 It is submitted that the Applicant failed to follow the leave procedure to the letter.
Whether the Applicant was entitled to Special Leave for Urgent Private Matters
 In terms Education Labour Relations Council (ELRC) Resolution 7 of 2001 clause 15 provide for Family Responsibility Leave and Special Leave for Urgent Private Matters.
 Clause 15 (3) of aforesaid resolution stipulate that an institution-based educator may, during a scheduled working period, be granted special leave to attend to urgent private matter, the nature if of which is such that it warrants such an educator’s absence from work.
 The reasons advance on the 29th July 2020 by the Applicant’s in that she had car breakdown from the 31/03/2019 to 05/04/2019 deposed to the affidavit are not substantive to warrant special leave for urgent private matter. The Applicant had alternatives in order to report for duty and honour her contractual obligations.
 The Respondent submit that the aforesaid reasons advanced and excessiveness of the period for leave of absence are contrary to the spirit of clause 15(3) of ELRC Res 7 of 2001 and should not be condoned.
 In light of the above, the Respondent prays that the dispute be the dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENT
 In terms of Section 186(2) (b) of the LRA, an unfair labour practice includes, “the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee”. The onus is on the Applicant to prove, on a balance of probabilities, an unfair act or omission on the part of the Respondent that gives rise to an unfair labour practice.
 The dispute was referred as an allegation of an unfair labour practice in relation to benefits. I am therefore required to determine whether the Respondent’s conduct was unfair in not approving the Applicants leave or not, to succeed in such a claim, the Applicant must show that the Respondent’s conduct was arbitrary, capricious and therefore unfair.
 I accept that the Applicant had a car breakdown. However, I am not convinced that this justified her to be away from work for a period of four consecutive days. Moreover, the applicant indicated that she had a family crisis but failed to apply for family responsibility leave. Instead, she applied for special leave. She took leave without approval and later applied for this leave. According to me, this was an after event. In my view, leave application is not an absolute right. It is a management tool and is subject to approval by management. As a result, it can’t be a foregone conclusion that if one wants to apply for leave, automatically it would be granted. It is important to note that sick leave is different from family responsibility leave same principle applies to special leave. These are not the same, as a result, these applications will not be treated the same. The applicant submitted that “An institution-based educator may, during a scheduled working period, be granted special leave to attend to an urgent private matter.” This simply means that the applicant cannot grant herself special leave, the employer may grant or not grant leave application depending on the circumstances. The allegation that the Applicant sent an SMS to her Supervisor on 02 April 2019 applying for leave is disputed by the respondent. The respondent submitted that it only received the applicant’s sms on 29 July 2019 and not on 02 April 2019.
 I accept the respondent’s submission that the applicant’s leave application was approved and or granted without pay. I am satisfied that the applicant’s took leave without approval and or prior notification. I am persuaded by the respondent’s submission that the Applicant was not paid for days she was absent and no deduction effected on her salary but rather non-payment of days not worked. I believe that the Applicant was paid for work done and not paid for work not done, resulting in a lesser salary. I accept that no staff member may absent him/herself for any period during working day without competing a leave form and obtaining permission from his/her direct manager/supervisor It is my finding that the Applicant failed to follow the leave procedures.
 In Aries v CCMA & others (2006) 27 ILJ 2324 (LC) the Court held that “there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner”.
 In view of the above judgement, and the reasons mentioned above, I am inclined not to interfere with the decision of the Respondent to grant the Applicant’s leave and regard it as leave without pay.
 It is my finding that a discretion which had been exercised by the respondent was properly exercised.
 It is my finding that the Applicant failed, on a balance of probabilities, to discharge the onus resting on her to prove that the Respondent committed an unfair labour practice concerning benefits.
 I therefore make the following award:
 The Applicant has not discharged the onus to show that the Respondent has committed an unfair labour practice in relation to leave.
 The Applicant’s dispute referred under case number ELRC633-1920MP is dismissed.
ELRC PANELLIST: PAUL PHUNDU