Case Number: PSES471-19/20WC
Province: Western Cape
Applicant: NAPTOSA obo A Woodington
Respondent: Department of Education Western Cape
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 20 January 2021
Arbitrator: Grace Mafa-Chali
Case Reference: PSES471-19/20WC
Date: 20 January 2021
Panellist: Grace Mafa-Chali
In the matter between:
NAPTOSA obo A Woodington Applicant
Department of Education – Western Cape Respondent
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing was heard on 20 October 2020, 09 December 2020 and finalised on 10 December 2020. The applicant was represented by Ms Cailyn Harris, NAPTOSA Labour Officer and the Respondent was represented by Mr Clayton Vorster, Senior Employee Relations Officer. At the conclusion of the arbitration process on 10 December 2020, both parties requested to submit written closing arguments and were directed to do so by 15 December 2020. Both parties have obliged. I have considered the parties’ evidence and written oral arguments in my findings in this award.
ISSUES TO BE CONSIDERED
2. I must determine whether or not the Respondent has committed unfair labour practice to the Applicant in terms of Section 186 (2) of the Labour Relations Act 55, as amended (The Act).
3. If so, I must determine the appropriate relief.
BACKGROUND TO THE ISSUES
4. The Applicant was employed as an Educator at Excelsior Secondary School in the Western Cape Province since 01 July 2008. He applied for 45 days temporary incapacity leave for the period from 10 October 2016 to 19 November 2016. He had exhausted his 36 sick leave days and previously utilised 53 days of temporary incapacity leave. The Applicant was diagnosed with major depressive disorder by his treating doctor. His application was declined by the Respondent due to insufficient information submitted to warrant such an extended period of absence from work. Subsequently, the Respondent made deductions to the Applicant’s salary for approximately R36 000.00 as he was already paid his full salary for that the period but he was absent from work.
5. The Applicant believed that it was unfair for the Respondent to have declined his incapacity leave and deducted monies from his salary because all necessary medical evidence requested was submitted to the Health Risk Manager but the Applicant’s application for temporary incapacity leave was still declined. The Applicant called an expert witness, Dr George, the Psychiatrist in support of his evidence.
6. The Respondent submitted that the Applicant’s temporary incapacity leave application was declined as the medical information submitted to Alexander Forbes Health Risk Manager was not sufficient to warrant the number of days of absence from work as applied and the Applicant failed to submit the requested additional medical information to review his application despite requests to do so; hence deductions were made from his salary for absence from work as unpaid leave. The Respondent prayed for dismissal of the Applicant’s claim.
7. Both parties agreed to use the same bundle of documents paginated submitted and exchanged which were marked Bundles A and B.
SURVEY OF PARTIES’ EVIDENCE
Alfred Woodington testified under oath as follows:
8. He was employed permanently as an educator for approximately 12 years. He taught History and Afrikaans in Grade 11. Since 2015, he started to teach 40 and 52 learners in Grade 8 classes. The number of learners was a challenge on its own and the learners used to swear at him in class and used abusive language. He did not get the support from the Principal who told him to sort out his own problems when he complained. The parents of the learners also protected them when he called them to school to report and discuss the behaviour of their children. The learners were not disciplined.
9. He could not sleep at night as he had nightmares. He went to see Dr George as he could not handle it anymore to have about 450 pupils giving him stress. He held sessions with Dr George and as time went on, 52 learners were dropped to 35 learners in class. They reduced the learner capacity so that he could cope and more teachers were employed and furthermore a new class was also created.
10. He felt helpless and wanted to take his life away. Dr George diagnosed him with severe depression as a result of the work environment in dealing with the learners. When he went for the last session with Dr George, he told him that he was ready to go back to work in December 2016. He was also put on medication which made him feel better, relaxed and his sleeping was also much improved.
11. He only put a grievance when the Respondent deducted his salary for R6 000.00 every month. He went to consult his doctor as he could not cope at work; he could not sleep at night and had nightmares.
12. The department could not help him with the unruly learners and therefore it could not help him when he was sick, hence he did not lodge a grievance when he experienced those challenges.
Dr Geoffrey Christopher Winston George testified under oath as follows:
13. He was a General Psychiatrist with no particular speciality. He qualified in 1969 and registered as Specialist Psychiatrist in 1975. He worked in government practice from 1981 to 1986 and from 1986 to 1989 he worked in the Medical Directorate in Pretoria. He has been in his own private practice since 1989.
14. He consulted with the Applicant on 07 April 2016 and he presented symptoms of severe depression, anxiety and concentration problems. He had nightmares and lost appetite. He prescribed antidepressant and sleeping pills to the Applicant which were not expensive and worked well for him.
15. He observed progress in the Applicant and how he responded to the medication and whether he was experiencing any side effects so that he could adjust them up or down or change the medication if he was not responding well.
16. The Applicant was sensitive to the side effects on the medication and was given half dose which he used longer. He also took time to respond to the medication and then took full dose. He consulted with the Applicant on a monthly basis to assess his progress and also invited him to contact him telephonically if necessary. The main cause of his depression was the work situation, his experience in class. The nightmares and forgetfulness were prominent symptoms. He started to consult with the Applicant in June 2016.
17. Over a period of time, the Applicant responded to the medication which lessened his anxiety and he became much better and could go back to work the following year. It was not necessary to refer him to a psychologist as he was not suicidal to be admitted to hospital and since he was a private patient paying for his treatment. He did not want to make it more expensive for him but economical with a choice of medication for the treatment. The Applicant was 57 years at the time and 8 years ago he had depression and did not have major psychological issues.
18. The Respondent declined the Applicant’s application for temporary incapacity leave and as a treating doctor, he gave him the choice of dose of medication suitable as he was quite a sensitive person and it was not imperative to take him to a stronger dose. He saw him on 5 occasions between June and September 2016. In his opinion, the medical information supplied was sufficient. He needed temporary sick leave as he was still depressed and had anxieties, forgetfulness and nightmares. As they were persisting, he could not go back to classes since he was forgetting and would not be able to perform properly. He would have knocked down and possibly cause another depression if allowed to resume work early. He could only go back to work and teach when he was ready to perform his normal functions as a teacher. As he did not have any psychological issues, there was no need for hospitalisation for speedy recovery.
19. He confirmed that he submitted 2 additional reports to the Respondent over and above the first one and that was in 2017, 2018 and 2019 and all were duplicates. The Applicant did ask him for the reports but nobody asked him for any additional information to the reports. He never saw Alexander Forbes reports until he got the bundle of documents for this matter. The report is also not specific on what kind of additional information is required.
20. He then subsequently gave Cailyn the report dated 11 September 2020 when he received the reports from Health Risk Manager and noted that the report are dated 13 December 2016 and 21 December 2018 respectively.
21. He had no problem in writing the reports and would have done it if approached by the Respondent or Alexander Forbes. It was however rather too late when he received the reports for him to supply any additional information to them.
22. The Applicant closed his case.
Bernadette Tatan testified under oath as follows:
23. She is the HR Manager of the Respondent and deals with working conditions of service, appointments, exits and leaves including incapacity leaves. She held the position since February 2009. Before her appointment to her position, she was the Provincial Secretary of the ELRC, Western Cape Chamber since 2005 and also dealt with incapacity leaves.
24. She was familiar with the applicant’s application for incapacity leave which was declined and he was requested additional medical information by Health Risk Manager. The Health Risk Manager did not recommend the incapacity leave as reflected on Page 47 and 48 of Bundle A, stating the reasons thereof. The Applicant then lodged a grievance when his application was declined and further lodged a second grievance when his second application was also declined. The Applicant submitted the same report which the Health Risk Manager recommended to decline as still no new medical information was submitted.
25. When the Applicant wanted to lodge a third grievance, she advised him to do Access to Information application to get the full reasons as to why his application was declined and review the decision of the Health Risk Manager. He was advised to take the reports to his Specialist Doctor so that they could see which information was required.
26. However, the Applicant for the third time submitted the same report as before and the Risk Health Manager still recommended that it be declined. Reference was made to Page 72 of Bundle B.
27. Temporary incapacity leave is not an extension of the sick leave and if its work related, the employee must be 100% incapacitated to perform normal duties hence Alexander Forbes advised the Applicant to go to the Health and Wellness Department for intervention as it appears on Page 48 of Bundle A. The period of the Applicant’s absence from work was too long and more information on the diagnoses and treatment received was required.
28. She referred to Clause 3.1 of Policy and Procedure on Incapacity and Ill-Health Retirement (PILIR) dated April 2009 which provides that it is the discretion of the Respondent to grant temporary incapacity leave and Health Risk Manager is appointed to do the investigation on behalf of the Respondent on the decision.
29. She was aware that the Alexander Forbes’s reports were received by the Applicant and he was aware of the reasons as to why it was declined. Reference was made to the email communication regarding the process for access to information on Page 2 of Bundle A dated 20 November 2017.
30. She guided the Applicant in the grievance process but as the Applicant’s application was declined he was supposed to pay. Reference was made to Page 41 of Bundle A dated 18 November 2016. The Applicant’s leave was conditionally approved. Clause 126.96.36.199 of PILIR Policy grants 29 working days temporary leave and the Respondent agreed to grant the whole period but the Health Risk Manager converted it to leave without pay. In doing investigations the Health Risk Manager may contact the medical practitioner to verify the information if necessary and if the employee has given consent as on Page 14 of the PILIR Policy.
31. However, depending on the contents of the information on record, they may contact the doctor or make a ruling and conclude the report based on documents submitted. If there is serious medical information required, they normally consult the Specialist. In this case, the Respondent went beyond the normal process in that on three occasions, the same report was submitted and information required was not supplied. In terms of PILIR Policy, the onus is on the employee to indicate why he/she cannot work and prove the incapacity not the Respondent or the Health Risk Manager. The employee must submit sufficient information.
32. The Applicant received a letter on Page 61 of Bundle B dated 27 September 2019 advising him that his application was declined and that additional information was required. She believed that if Dr George has submitted the required medical information, the application could have been approved since on previous occasions the supporting medical reports he submitted were approved by the Health Risk Managers of Alexander Forbes.
Ms Haniefa Dalvie testified under oath as follows:
33. She was the Disability Consultant and Occupational Therapist by profession. Her role involved assessing and improving any work environment, determining the temporary incapacity, ill health or retirement based on medical reports received from the employee and then make a determination based on that.
34. Reference was made to Page 72 of Bundle B which is the report she assessed in December 2018. The Applicant submitted an incapacity leave application and additional information advising why during the period he could not work. As they do not diagnose and the information was that the Applicant could not perform due to his depression, more objective medical information to support the application was required.
35. Reference was made to Page 75 of Bundle B which showed that according to Dr George, the Applicant was diagnosed with severe depression symptoms but the reasons were not good for incapacity leave and more objective evidence was required to establish whether he was able to work or not.
36. Diagnosis was not challenged but findings were made on medial information supplied and the recommendation was to decline the incapacity leave application based on the following reasons: Medical Disability Advised (MDA) which is the guideline to determine whether how an employee needed to recover was used and it recommended a period of 43 days for major depression; however the Applicant used 41 and 53 days which was a total of 94 days on the basis of major depression disorder. On that basis, more information would have been required for additional 45 days as it was a long period of time such as whether he attended to the psychologists, medical adjustments, hospitalisation and others.
37. If Dr George was able to provide them with objective evidence on why 45 days was required, maybe the decision could have changed depending the information supplied. In the recent report submitted by Dr George in 2020, the treatment he gave was to remove the Applicant from his work environment as a result of stress. This was not sufficient for a person to say he/she is temporary incapacitated as the Applicant only saw Dr George once during the booked periods. The medication which was prescribed was used previously without adjustments.
38. The report went to Quality Assurance who recommended that the application be declined as there was no objective information to conclude that the Applicant was unable to do his work for the duration of his absence. All the information supplied was considered taking into account the amount of days already taken, 53 days, 12 days partially approved and 41 days declined.
39. The Respondent closed its case.
ANALYSIS OF PARTIES’ EVIDENCE AND ARGUMENTS
40. This tribunal derives its jurisdiction to arbitrate unfair labour practice disputes from section 186(2)(a) of the Labour Relations Act No 66 of 1995.
41. An employee who alleges that he is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair. What is fair depends upon the circumstances of a particular case and essentially involves a value judgement.
42. The Applicant in this case alleged that the Respondent unfairly declined his temporary incapacity leave and deducted monies from his salary for his absence from work for the period 10 October 2016 to 19 December 2016 which came as a result of the diagnosis of major depressive disorder from his work environment. He had too many learners in class and could not cope. The learners did not respect him and verbally abused him in class; and when he complained to the Principal and school management as well as the learners’ parents he did not get the necessary support. The Applicant was diagnosed previously for the same disorder.
43. As a result he consulted Dr George who diagnosed him for a severe depression and booked him off from work and also prescribed him some medication for treatment. The Applicant exhausted his sick leave and Dr George then recommended that he be given temporary incapacity leave since he was not fit to report for duty at that time.
44. When the Applicant lodged his application for temporary incapacity leave, it was taken to Alexander Forbes Health Risk Manager for assessment, evaluation and recommendations were made by the Health Risk Manager that the application must be declined by the Respondent since there was outstanding objective medical information required to motivate for the application. Subsequently after a lengthy of time, the leave was converted into unpaid leave and the Applicant was demanded to repay the salary paid by the Respondent to him during his absence of work, and later the monies were deducted from his salary and according to the Applicant the amount is approximately R36 000,00.
45. I must state from the outset that most of the facts were common cause and the Respondent did not dispute the diagnosis of the Applicant by his treating doctor, Dr George, the Psychiatrist. What is in dispute it whether it was reasonably fair or not under the circumstances for the Respondent to decline the Applicant’s application for temporary incapacity and deduct monies from the Applicant’s salary.
46. The Applicant led his own testimony and also called Dr George as an expert witness in terms of the Rules of the Council. Dr George gave a very lengthy testimony explaining the diagnosis of the Applicant for a major/severe depression disorder which was from work environment as well as personal problems, the treatment he gave him over the treating period as well as the reasons why he recommended temporary incapacity leave for the Applicant.
47. It was argued by the Applicant that the PILIR Policy requires that if the Applicant has given consent, the Health Risk Manager must have consulted with the treating doctor and in this instance that was not done and it was unfair to base the decision to approve and decline the leave application merely on the documents and utilising only the MDA. It was further argued that the Health Risk Manager did not know what information they were looking for. Ms Dalvie did however in her evidence outline what objective medical information was required under the circumstances when he assessed the application.
48. The Respondent led the testimony of the HR Manager Ms Bernadette Tataw on how the incapacity leave is managed and with reference to the relevant provisions of the PILIR Policy. The Health and Risk Manager from Alexander Forbes, Ms Haniefa Dalvie also testified how they asses the temporary incapacity leave, the considerations and the tools used to determine the medical information supplied to support the applications. She furthermore testified that she was the one that re-assessed the Applicant’s second application and she came to the same conclusion to the conclusion of the previous report since the information that was required was not submitted by the Applicant to justify why it was warranted for him to be granted an incapacity leave.
49. Leave is an entitlement to the employee in terms of the law. However it can only be granted under the discretion of the employer. In this instance since the leave applied for is temporary incapacity leave, a thorough investigation of the ill-health must be considered in terms of Schedule 8 of the LRA.
50. Even though the employee is entitled to the stated rights and privileges while they are sick, one cannot benefit from the same based on insufficient medical evidence. There needs to be enough medical proof that the person is ill and hence incapable of carrying out their duties.
51. The Applicant argued that the Applicant did not lodge a grievance when he was not assisted at the school and argued that it is doubtful that following internal grievance procedure would have assisted him with his depression. I do not agree with this submission since the purpose of an internal grievance is to give the employee a way to raise issues with the employer about the working environment or working conditions and seeking a satisfactory remedy.
52. On the same breath the Respondent argued that it was just a speculation by the Applicant and Dr George that if he had lodged a grievance it would be a dead end and the Respondent was not placed in a position to assist the Applicant during the time of discomfort. I also agree with this argument.
53. I must emphasise that it is very important that the Respondent should have also been given an opportunity to remedy the formal complaint brought by the Applicant and only when it failed could the matter then be escalated to other external forums. It is however noted that the same argument is not advanced when the grievance was lodged by the Applicant in relation to the repayment of the debt demanded by the Respondent as in this instance the formal grievance was lodged to the Respondent.
54. It is also not compulsory that the Respondent should have contacted the treating doctor as argued by the Applicant. The Respondent’s witnesses have clearly explained under what serious circumstances that would be done and that in the Applicant’s case it was not necessary. In assessing the application and scrutiny of the submitted available information, the Health Risk Manager must amongst others as stipulated in Clause 188.8.131.52(c)(ii) of the Policy(PILIR) that “If the employee consented thereto, contact with the treating medical practitioner to verify information where necessary. I am satisfied of the explanation given by the Respondent.
55. Documents in the Bundle of documents referred to show that the Respondent gave feedback to the Applicant and the school as well explaining that his application for incapacity leave was declined and the reasons thereof. I note that letters were sent after the application date had long passed and the Applicant was already back at work. Understandably so as it is evident that this was due to the fact that initially the application was conditionally approved subject to submission of the outstanding medical information. Subsequent to this communication there was also an exchange of emails between Letricia and Dr George on 23 November 2018 regarding the reports to be submitted and Dr George responded that he was not sure which reports Letricia was referring to as the reports submitted were the only ones on file
56. I believe at this stage it was a cul de sac for the Applicant’s application and the Respondent had to proceed to assess it without Dr George’s additional medical information.
57. I noted that the Applicant was also copied on that communication. The obligation was therefore on the Applicant to submit the letter together with the reports to Dr George so that he can supply such outstanding requested information. It is disputed that the Applicant received the reports but actually the email communication between the Applicant and one Letrecia A Pillay was submitted in evidence showing that the Applicant was aware of the reports as he was following up with completion of some documentation. It is very unclear on what basis was Dr George submitting the same medical reports and why the Applicant did not give him the reports to see what kind of information is outstanding as required.
58. I am satisfied that the Respondent had done its best in accommodating the Applicant as seen from the reports submitted by the Alexander Forbes which clearly show that a thorough assessment was done before a conclusion to decline the application was made when the requested information was not forthcoming.
59. From the testimony by Ms Tataw, with her experience and having worked in the administration of leave that if the requested medical information was submitted by Dr George, the Applicant’s application could have been favourable considered (my emphasis) considering her experience and working with several applications for which Dr George was a treating practitioner. Dr George also confirmed that if he became aware of the information required on time, he could have supplied it as he did on 20 September 2020 when the Applicant’s representative Ms Harris approached her to be a witness on the matter.
60. It is just unfortunate that the 20 September 2020 medical report was very belated to enable the Health Risk Manager to reassess the Applicant’s incapacity leave application as the report was only meant for this arbitration process. Whether or not if the new medical information in this report would have been sufficient and made the application to succeed is still unknown as the assessment process would still have to be done and a proper scrutiny of the additional information be made.
61. In the light that the Applicant’s incapacity leave application was declined on the basis of insufficient medical information and in the absence of submission of such requested information by either the Applicant or his treating medical practioners, I find no fault on the part of the Respondent. I also concur with the Respondent that the Respondent was actually more lenient under the circumstances to allow the Applicant and his treating doctor to submit the additional reports, unfortunately the same report was submitted by the Dr George and it was not of any assistance to the process. The evidence is also that in that period the Respondent did not enforce the demand on the Applicant to repay the debt as his application was still under process and this was reasonably fair to the Applicant. The fact that the application delayed and ultimately declined cannot remove the liability on the Applicant to still be responsible for the repayment of the debt as it was a process that he was also personally involved in, and he even lodged two grievances in the process.
62. Based on the above mentioned reasons and findings, it is my considered view that the Applicant has failed to prove on a balance of probabilities that the Respondent has committed unfair labour practice as alleged. Having considered all the relevant factors, I am satisfied that his claim stands to be dismissed.
In the premises I made the following order:
63. The Respondent has not committed an unfair labour practice as intended in Section 186(2) of the LRA.
64. The Applicant’s claim is dismissed.
65. No order as to costs is made.
Name of Panellist:
M G MAFA-CHALI