ELRC 522-19/20 EC
Award  Date:
10 November 2020
Case Number: ELRC 522-19/20 EC
Province: Eastern Cape
Applicant: NAPTOSA obo Van Der Merwe, P
Respondent: DEPARTMENT OF HIGHER EDUCATION AND TRAINING
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtually
Award Date: 10 November 2020
Arbitrator: Hadley Saayman
Case Number: ELRC 522-19/20 EC
Panelist: Hadley Saayman
Date of Ruling: 10 NOVEMBER 2020

In the matter between

NAPTOSA obo Van Der Merwe, P

(Educator/Employee)

And

DEPARTMENT OF HIGHER EDUCATION AND TRAINING
(Employer)

DETAILS OF HEARING AND REPRESENTATION

1. This matter came before the Bargaining Council as an unfair labour practice dispute in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995 (LRA), and was set down as a virtual hearing on
31 October 2020.

2. The Applicant was represented by Mr Peter Du Preez, an Executive Officer of NAPTOSA.

3. The Respondent was represented by Ms Pinky Makhoka, a Labour Relations Officer.

4. It was agreed, because of the volumes of bundles, that the applicant would file a statement of claim by 2 November 2020 and the respondent would file replying papers by 9 November 2020, which they have done.

ISSUE TO BE DECIDED

6. I must decide whether the respondent committed an unfair labour practice in terms of section 186(2)(a) by failing to pay the applicant the medical expenses and travelling amounts incurred, because of an injury on duty.

BACKGROUND

7. The applicant was employed by the respondent as a Lecturer from 1 July 1995 and thereafter as Campus Manager with effect 1 February 2008.

8. The applicant was involved in an accident on 8 September 2015 whilst on her way to a College meeting. The applicant was injured and hospitalized.

9. The applicant was first admitted to Queenstown hospital. However, the doctors transferred her to Bloemfontein hospital. The applicant had to receive follow-up medical treatment in Bloemfontein and Johannesburg. The applicant was medially boarded on 30 June 2019.

10. An IOD (Injury on Duty) claim was duly registered with the Department of Labour. The Compensation Fund paid the applicant’s medical expenses and issued a finalization letter that the applicant did not suffer permanent disability. The applicant objected and the IOD was re-opened in October 2018.

11. The respondent paid an amount of R 27 364,45 to the applicant in respect of medical expenses incurred.

12. The applicant claims that she incurred an additional amount of R 95 082,91 in respect of medical costs.

13. The applicant further claims that the respondent undertook to assist her with transport costs incurred, which to an amount to R 109 598,53.

SURVEY OF EVIDENCE AND ARGUMENT

14. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the Act,
relevant to the dispute at hand.

APPLICANT’S SUBMISSIONS AND ARGUMENTS

15. The relevant W.CI.2 form was duly completed and handed to the HR Office within 14 days after the accident, as requested.

16. Based on one report from Dr JZ Eloff, the Compensation Fund indicated that applicant did not suffer any permanent disabilities.

17. The applicant submitted that she travelled at her own costs from Queenstown to Bloemfontein and back to Aliwal North after her accident. HR did not arrange any transport for her, nor informed her that she is entitled to College transport. She was given extremely limited guidance from Ikhala regarding Injury on duty. She had to do everything herself.

18. During February 2016 she visited a brain specialist Dr WS van Niekerk and during September 2016 she was diagnosed with frontal-lob brain damage. She started with rehabilitation with visits to an Occupation Therapist and neurophysiologist in Bloemfontein from February 2017.

19. During middle August 2017 she was diagnosed with Epilepsy, after an EEG (1st one after the accident) was taken and was not allowed to drive a motor vehicle.

20. She had to travel and stay in Bloemfontein for 4- 5 days at a time. Sometimes only 2-3 days in a B&B. She wrote numerous letters asking for help with medical- and travelling expenses, with no response by the respondent.

21. Eyetek screened her on 20 June 2017and was discovered that she had a visual mid-life shift.

22. She did not receive any response from Ikhala and Department of Labour about her objection to the closing of her IOD until during October 2018.

23. During February 2019 Me S Makhapela came to her house and advised that at last Ikhala budgeted for my medical and travelling costs. She needed to submit invoices, receipts, and complete the travelling claims on a form, (Claim for Utilisation of personal vehicles) designed and coded by Ikhala with a unique number, using rates indicating by the Department of Transport.

24. A total amount of R182 633.66 is owed to the applicant. Medical and transport cost have been submitted in 1 of 3 pages 42 to 50.Proof of medical costs have been submitted in Bundle 2 of 3 pages 1-69.Proof of Transport costs have submitted in Bundle 3 of 3 pages 1-83.

25. The applicant referred to the three issues raised by the LAC in the Apollo Tyres SA (Pty) v Commission for Conciliation, Mediation and Arbitration (2013) 34 IU 1120).
• An existing practice or policy in the workplace that gives the employer a discretion to grant
certain benefits.
• A demand must be made by the employee and
• The employee must claim that the demands should be met, because the employer has acted unfairly in exercising its discretion and refusing the benefits.

26. The applicant referred to the DPSA policy on injury on duty (Bundle 1 of 3 on p23)
“ 14.4. All medical costs for injury on duty will be covered by the Department. Officials who used
their own medical aid to cover the medical expenses, will be reimbursed money refunded back to
the medical aid.”
14.5 In the event that employee is involved in an incident or an accident is to be taken to the hospital,
the Department will provide transport. Trip Authorization should be obtained from the responsible
manager of the effected employee.”

27. The applicant qualifies for the benefits as referred to above.

28. The respondent paid R27 364,45, which is an admission that they must pay all outstanding claims
regarding benefits owed to the applicant.

29. The final acceptance of liability by the Compensation Commissioner on behalf of Department (DHET) and
Council date 14 March 2019. The liabilities have been clearly stated. (p12 of bundle 1 of 3)

30. The payment of the benefits is therefore due from the date of the accident to 25 December 2018. (bundle
1 of 3 DOL Letter W.CI.127 p12).

31. It should be noted that the first application for compensation was incorrectly rejected on 5 April 2016
as only an eye specialist was quoted in the application. The applicant has been referred to various
Medical Specialists and suffers permanent disabilities. She has been medically boarded because of
her injuries. (Bundle 1 of 3 p11).

32. In terms of the CIODA Act Section 73(1) and (2), The Director General may pay all benefits claims or
direct the employer to pay the claim benefits – dated 14 March 2019. (See bundle 1-3 p12).

33. The claim was registered within the prescribed two years of the accident by the Employer. (See bundle 1
of 3 p11).

RESPONDENT’S SUBMISSIONS AND ARGUMENTS

With regards to the medical expenses claimed by the applicant, the respondent submits as follows:

34. The respondent does not dispute the fact that liability was accepted by Compensation Commissioner on its behalf to pay reasonable medical bills incurred in respect of an accident. (See page 12 of the Applicant’s bundle).

35. The Respondent submits that the finalisation letter was issued by the Compensation Commissioner indicating that the Applicant suffered No permanent disability as a result of an accident. (See page 11 of Applicant’s bundle)

36. Section 14.2 of DPSA IOD Policy and procedures read as follows:
“Follow- up treatments will be allowed up to period of two years in line with COID Act,”

37. Hence the respondent complied and paid an amount of R27 364.45 to the applicant.

38. If further medical treatment is required outside the prescribed period, approval need to be obtained from the Director –General and there must be sufficient proof to indicate the necessity for the follow-up, which the Applicant failed to submit enough proof. (See page 23 of the Applicant Bundle.)

39. Section 73(1) of COID Act stipulates that: “The Director General or the employer individually liable or mutual association concerned, as the case may be shall for a period of not more than two years from the date of an accident or the commencement of a disease referred to section 65(1) pay the reasonable cost incurred by or on behalf of an employee in respect of medical aid necessitated by such accident or disease.”

40. Section73(2) of COID states that: ”In the opinion of the Director General, further medical aid in addition to that referred to in subsection (1) will reduce the disablement from which the employee is suffering, he may pay the cost incurred in respect of such further medical aid or direct the employer individually liable or the mutual association concerned, as the case may be, to pay it.

41. It must be noted further that Respondent paid an amount of R27 364.45 to the applicant for the medical expenses incurred. (Claims were submitted by the Applicant and calculation were done, an amount of R24 044.11 was to be paid to the Applicant for medical costs incurred from the date of the accident in September 2015 to 30th of September 2017 (the period of 2years as per Section 73(1) of COIDA and Section 14 (14.2) of DPSA IOD Policy)). However, the Respondent paid R27 364.45 to the applicant, meaning the applicant was over paid with R3 320.34.The reason for the overpayment was that some of the claims paid fall beyond the 2 year period, which that was erroneously paid to the applicant.

42. Section 74, Subsection (3) of the COID Act stipulates that, ”If a medical Practitioner fails to furnish a medical report, or in the opinion of the Commissioner or the employer individually liable in mutual association, as the case may be, fails to complete it in a satisfactory manner, such party may defer the payment of the cost of the medical aid concerned until the report has been furnished or completed in a satisfactory manner, and no action for the recovery of the said costs shall be instituted before the report has been so furnished or completed. “

43. Section 15 of the DPSA IOD policy and Procedures states that: ” All claims for compensation will be dealt with in terms of COID Act. Employees may be specifically required to submit medical examinations reports in order to claim compensation. Medical examinations reports (First, progress/ final); either for accidents or occupational diseases is often required by the COIDA office from medical practitioners once medical examinations have been completed.” (See page 23 of the Applicant bundle).

44. For example, Applicant’s bundle 2 of 3 starting from page 1 to page 69 does not contain any medical reports as a proof that these claims are IOD related, only statements, receipts and pharmacy print-outs. These claims were submitted to the Respondent, however the issue of medical reports that were required was brought to attention of Applicant.

45. It is not true that these claims are from the date of the accident till 25 December 2018, they go beyond that until 2019. (See page 59 to page 66 of Applicant’s bundle 2 of 3). Some of them are duplicated claims. See page (2 to 3 and 38 to 39), page (9 to 10 and 45 to 46) page (7 and 43) just to mention few. This leaves a question of whether this R73 035.13 came out of duplication made by the applicant or out of 2019 claims included by the applicant or out of the claims that were already paid. For example, R1 247.90 for Dr Du Plessis was already paid, and it is included.

With regards to the transport costs claimed by the applicant, the respondent submits as follows:
46. The Applicant’s bundle 3 of 3 starting page 1 to page 83 does not contain any Doctor’s medical reports as a proof that travelling claims were IOD related. Secondly, there is no completed transport authorization application form that was declined by the Respondent which made her to use her private transport or a proof that indeed transport was requested by the Applicant by any form or means.

47. Section 14.5 of DPSA Injury on Duty Policy and Procedures for the public service deals with transport and read as follows: “ In the event that is involved in an incident or an accident is to be taken to the hospital, the Department will provide transport. Trip authorization should be obtained from the responsibility manager of the affected employee.”
48. Claims were submitted by the applicant 3 years later without any trip authority attached or permission for the use of personal transport as stipulated in Section 14.5 of the DPSA Injury on Duty Policy and Procedure. There is also no proof that the travelling is IOD related.

ANALYSIS OF SUBMISSIONS AND ARGUMENTS

49. Section 186 (2) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as meaning inter alia:
(2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving —
(a) 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; …

50. The LRA requires employers to treat employees fairly. An employee who alleges that she is the victim of an unfair labour practice bears the onus of proving all of the elements of her claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair.

51. Fairness requires that the position and interests of both the employee and employer are taken into account in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper regard to the objectives sought to be achieved by the Act and all relevant policies.

52. In Malope v Crest Chemicals (Pty) Ltd (LC) (unreported case no JS286/15, 20-2-2017) (Van Niekerk J), the employee retired and, thereafter, referred a dispute alleging unfair discrimination under the Employment Equity Act 55 of 1998. Considering the definition of an ‘employee’ the court held:
‘It is not in dispute that the applicant was an employee during the period to which his equal pay claim relates. The fact that he was no longer an employee at the time the claim was referred, in my view, is not fatal. … I fail to appreciate on what basis the definition of ‘employee’ in the EEA precludes him from referring a claim in which he exercises the right under s 6, provided of course that the claim is made within the applicable time limit or any late referral is condoned’.

53. In Velinov v University of KwaZulu-Natal and Another [2006] 6 BLLR 607 (LC) the employee unsuccessfully applied for a promotion, pursuant to which he resigned. While working his notice period he referred a dispute to the CCMA alleging his non-appointment was unfair. On review and in addressing the argument that the CCMA lacked jurisdiction to hear the employee’s claim, the court held:
‘I do not accept that an employee whose employment has been terminated either by resignation or otherwise, but who continues to work out his or her notice period, does not enjoy the protection of the provisions of the LRA and particularly the unfair labour practice provisions contained in Chapter VIII. This would not only be contrary to section 186(2) which, in defining an “unfair labour practice”, does not distinguish between different categories of employees but it is also contrary to the definition of “employee” in section 213.’

54. The Constitutional Court in Pretorius and Another v Transport Pension Fund and Others [2018] 7 BLLR 633 (CC) appreciated the notion that the LRA has recognised unfair labour practices under the LRA may extend beyond the end of an employment relationship.

55. It was common cause that the applicant was injured in the course and scope of her employment with the respondent.

56. It was common cause that the respondent is liable to pay the reasonable cost incurred by or on behalf of the applicant in respect of medical aid necessitated by the accident, for a period of not more than two years from the date of an accident. It was also common cause that the applicant has submitted progress and final medical reports indicating the necessity for the follow-up treatment. It was also common cause that the respondent accepted liability for the applicant’s medical expenses incurred herein. The liability for same was duly authorised by the Compensation Commissioner in its letter dated 14 March 2019 (See page 12 of applicant’s bundle). It was further common cause that the applicant duly to submitted proof of medical expenses incurred to the respondent. During the previous proceedings, the respondent admitted that it was liable for the payment of the accounts, however they wanted to verify same. I made a ruling dated 17 July 2020 and directed the respondent to file a verification report in respect of the statements of accounts submitted by the applicant, the respondent failed to submit same. It was further common cause that the respondent made a partial payment of R27 364,45 to the applicant in respect medical expenses incurred by the applicant.

57. It therefore follows that the applicant has satisfied the onus that the respondent has committed an unfair labour practice by refusing to pay her the reasonable medical expenses incurred as a result of the accident. The respondent has therefore acted unfairly in exercising its discretion by refusing the benefits of the reasonable medical expenses incurred, as claimed by the applicant.

58. The respondent is liable to pay the applicant an amount of R 95 082,91 (Ninety-Five-Thousand and
Eighty-Two-Rand and Ninety-One Cent) for the reasonable medical expenses incurred.

59. I find it strange that the applicant, as a Campus Manager, was not aware of the travelling procedure and policy of the respondent. The applicant claims that the respondent promised that it would cover her travelling costs herein. There was no proof of a written application for any trip or travelling. It was common cause that the respondent and the College in particular has motor vehicles. It was common cause that the applicant did not request or requisition the use of a motor vehicle for attending medical treatment. It was also common cause that there was no written authorisation for the applicant to use her private motor vehicle to attend medical treatment.

60. It follows that the respondent has not acted unfairly in exercising its discretion by refusing the benefits
of the traveling costs claimed.

61. The applicant has failed to satisfy the onus that the respondent has committed an unfair labour practice by refusing to pay her the travelling costs claimed.

62. The scheme of the LRA requires of the employer to adduce evidence “that is sufficient to persuade a court, at the end ... that the claim or the defense, as the case may be, should succeed”. The Supreme Court of Appeal in Edcon Ltd v Pillemer NO (2010) 1 BLLR 1 (SCA) held that it is not sufficient to rely on general statements made without providing supporting evidence and putting material in front of the decision maker to ensure that he or she reaches a reasonable decision.

63. For the above reasons I make the following award:

AWARD

64. The respondent did not commit an unfair labour practice as contemplated in terms of section 186(2)(a) of the LRA by refusing to pay the applicant the travelling costs claimed.

65. The respondent did commit an unfair labour practice as contemplated in terms of section 186(2)(a) of the LRA by refusing to pay the applicant the reasonable medical expenses as claimed.

66. The respondent, the Department of Higher Education and training is ordered to pay the applicant, Ronel Van der Merwe the amount of R 95 082,91 (Ninety-Five-Thousand and Eighty-Two-Rand and Ninety-One Cent) in respect of the reasonable medical expenses incurred by the applicant.

67. Payment of the above-mentioned amount should be made to the applicant by no later than
20 December 2020.

68. I make no order as to costs.

Commissioner: Hadley Saayman
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