ELRC121-20/21KZN
ELRC121-20/21KZN
Award Date:
15 February 2021
Case Number: ELRC121-20/21KZN
Province: KwaZulu-Natal
Applicant: SADTU obo Mthembu, Khethiwe
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtually
Award Date: 15 February 2021
Arbitrator: George Georghiades
Commissioner: George Georghiades
Case No.: ELRC121-20/21KZN
Date of Award: 15 February 2021
In the ARBITRATION between:
SADTU obo Mthembu, Khethiwe
(Union / Applicant)
and
KwaZulu Natal Department of Education
(Respondent)
Union/Applicant’s representative: Mr. Siyabonga Zondi
Union/Applicant’s address: C 699 Mnambithi Road
P O Box 33
Kwamashu, 4360
Telephone: 031 509 6011
Mobile: 079 529 7618 or 071 907 2170
Telefax: 031 509 6011
Email: Mthembukhethiwe@gmail.com or
amilcabral.zondi92@gmail.com
Respondent’s representative: Mr. Itumeleng Makhooe
Respondent’s address: KZN Department of Education
Pinetown District, Durban North West Circuit
9 Voortrekker Road
Pinetown, 4001
Telephone: 031 907 5454
Facsimile: 031 907 5454
Mobile: 081 323 3262
Email: Itumeleng.Makhooe@kzndoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing between SADTU, obo Mthembu, Khethiwe and the KZN Department of Education was held under the auspices of the Education Labour Relation Council (“ELRC”), via Zoom Meetings. The matter was set down for arbitration on 14 January 2021, the dispute relating to the non-payment of salary. This dispute related to the enforcement of the provisions of the Basic Conditions of employment Act No. 55 of 1998 (BCEA).
2. In the applicant’s case, her dispute relates to the non-payment of her salaries and not an unfair labour practice. Section 69 of the ELRC Constitution makes provision for the enforcement of the BCEA conditions by the Council (ELRC). It is therefore upon this premise that I dealt with this dispute, as the applicant’s claim relates to the enforcement of salary payments.
3. The ELRC has jurisdiction to deal with disputes concerning the enforcement of the BCEA and unfair labour practice disputes.
4. Upon convening of the Arbitration hearing, the applicant’s representative, Mr. Siyabonga Zondi, advised the panellist that he had engaged with Mr. Makhooe earlier via telephone, to advise him that the applicant’s witness, a medical surgeon, was conducting surgery in theatre, and as a result, would not be available at 09h00 for the hearing.
5. The respondent’s representative, Mr. Itumeleng Makhooe, advised the applicant’s representative that he was ill and currently recovering from Covid-19, and that he was unable to attend to the arbitration hearing.
6. Mr. Zondi advised the panellist that the parties had mutually agreed to postpone the arbitration to a date suited to the panellist and the parties.
7. The panellist contacted Mr. Makhooe telephonically, who confirmed that he had contracted Covid-19 and that he was in self-isolation, recovering from Covid-19. He confirmed to the panellist that the parties had agreed to postpone the arbitration hearing to a date suitable to all the parties, at the panellist’s discretion.
8. The panellist issued a ruling that the matter be postponed to Thursday, 11 February 2021 at 09h00 via Zoom Meetings with the same meeting credentials.
9. The ruling ordered that should the respondent’s representative be unavailable to discharge the respondent’s case, the respondent was ordered to provide an alternative representative to attend the hearing on 11 February 2021. Similarly, the applicant was ordered to ensure that its witnesses were available to testify at the hearing on 11 February 2021 at 09h00. The ruling was timeously served on the parties by the Council’s Dispute Resolution case management officer.
10. The part-heard, adjourned arbitration hearing held on 14 January 2021 resumed on 11 February 2021 the notice of set-down, having been properly served on all parties.
11. The proceedings were conducted in English and were manually and digitally (video and audio) recorded.
12. The applicant was represented by Mr. Siyabonga Zondi, trade union representative of the South African Democratic Teachers Union (SADTU), while the respondent was represented by Mr. Itumeleng Makhooe, assistant director in the Labour Relations Unit of the KZN Department of Education. The parties had previously submitted their evidence bundles upon which they intended relying upon to the Council via email, who in turn, had provided these to the panellist.
PRELIMINARY ISSUES
13. The applicant and her representative stated that despite having been served the panellist’s ruling provided on 14 January 2021 and the notice of set down of arbitration for 11 February 2021, due to a misunderstanding, they had failed to secure the attendance of their witness.
14. The applicant’s representative requested that a medical report from his witness be entered into evidence to assist in proving the applicant’s case. The respondent’s representative objected to this, referring to the parties’ pre-arbitration minutes wherein the parties agreed to the manner in which documentary evidence is to be dealt, being that no further documented evidence would be admitted.
15. Upon inquiry by the panellist as to whether the document referred to would be submitted during the applicant’s leading of evidence, the applicant’s representative stated that this would not be possible and would only be available after the conclusion of the arbitration proceedings.
RULING IN RESPECT OF PRELIMINARY ISSUES
16. The parties were timeously served the notice of set-down for the arbitration hearing on 11 February 2021 at 09h00. The parties were also served with the panellist’s ruling on 14 January 2021 wherein the applicant was ordered to ensure that its witnesses were available to testify at the arbitration hearing on 11 February 2021.
17. Based on the intended late submission of the envisaged document, the panellist ruled that notwithstanding the objection by the respondent’s representative, if the document was to be permitted as evidence, the respondent, and/or any of its expert witnesses would not be afforded an opportunity to cross-examine the person who was the author of the document, which was prejudicial to the respondent.
18. The panellist subsequently ruled that the applicant representative’s request to submit documentary evidence from the witness who was not advised of the arbitration hearing was refused.
ISSUES TO BE DECIDED
19. This matter was brought in terms of the enforcement of the provisions of the Basic Conditions of employment Act No. 55 of 1998 (BCEA). As the dispute relates to the non-payment of salary, section 69 of the ELRC Constitution makes provision for the enforcement of the BCEA conditions by the Council (ELRC).
20. I am tasked to determine whether the respondent unlawfully failed to pay the applicant her salary while she was incapacitated and should relief be required, to order the appropriate relief.
BACKGROUND TO THE DISPUTE
21. It is the applicant’s case that the respondent rejected the applicant’s application for incapacity leave which was taken by the applicant during 29 August 2019 and 20 September 2019 based on medical reports submitted. By failing to consider these reports, the respondent failed to follow its own policies and procedures in respect of incapacity and ill health and as a result, the respondent unlawfully failed to pay the applicant’s full salary.
22. The relief sought by the applicant is the repayment by the respondent to the applicant in the amount of R 31 816.00 (thirty one thousand eight hundred and sixteen rand), that which was deducted over a period of six months, being the portion of her salary for the leave days that were not approved
23. The respondent disputed these allegations, referring as common cause to clause 2.4 of the minutes of the pre-arbitration conference, wherein the parties agreed that incapacity leave required the report of a medical practitioner justifying such leave. Upon submission of such reports, the respondent submits these to Tandile Health Risk Management, being the KZN Department of Education’s health risk management company, who in turn, provide a report and recommendations in respect of the applicant’s application for leave relating to incapacity.
24. The respondent stated that the applicant’s application for incapacity leave was properly considered but declined. The respondent stated that it would prove this by referring to the applicant’s grievance and response thereto in its evidence bundle. The respondent would call two witnesses to lead evidence in this regard.
25. As the matter referred to the ELRC by the applicant relates to the non-payment of salary, the onus of proof rests upon the applicant for this claim to succeed.
26. Upon the conclusion of their submissions, both parties were requested to address me in respect of their closing arguments. Both parties did so in writing, and I have considered these in my award below.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE:
The applicant’s representative, Mr. Siyabonga Zondi, testified that:
24. In the absence of his only witness, he would not lead any evidence, but reserved the right to cross-question the respondent and/or its witnesses once they had led evidence.
The applicant closed its case.
THE RESPONDENT’S CASE
The respondent’s representative, Mr. Itumeleng Makhooe, testified as follows:
25. As the onus of proof rested with the applicant, who failed to lead any evidence at these arbitration proceedings and by so doing, failed to prove its case, the respondent would not lead any evidence. The respondent would rely on the facts of law in its rebuttal.
The respondent closed its case.
ANALYSIS OF EVIDENCE AND ARGUMENTS
26. In the recent decision of The South African Social Security Agency v NEHAWU and others (reportable case number C233/14 delivered on 30 April 2015), the Cape Town Labour Court had to decide whether an arbitration award, in which the commissioner based her finding purely on documentary evidence in the absence of a stated case, was reviewable in terms of s145 of the Labour Relations Act, No 66 of 1995 (LRA).
27. A 'stated case' – also referred to as a 'special case' – is a written statement of facts, agreed to by the parties, so that a judiciary authority can apply the law to the agreed facts. Importantly, the NEHAWU decision did not involve a stated case. Rather – as noted in the commissioner's arbitration award – the parties had agreed that no evidence would be led and that the case would be decided on the written submissions and bundles of documentary evidence.
28. In referring to the benchmark case of Gold Field Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration & others (2014) 35 ILJ 943 (LAC), Rabkin-Naiker J failed to comprehend how a dispute which "hinges on the fairness of the conduct of an employer can be decided without the parties giving oral evidence".
29. The important principle to be extracted from this case is that, in the absence of a stated case, oral evidence must be led on the material facts in dispute. Commissioners and arbitrators should not condone an agreement between the parties to lead no oral evidence.
30. No evidence was led by the applicant, upon whom the onus to prove lies. I have not considered evidence and arguments that the applicant failed to raise at the arbitration proceedings. Subsequently, the respondent representative has taken a position that in the absence of any evidence having been led by the applicant, there was no evidence that required any rebuttal. In the absence of any evidence led, in line with the findings of Naiker J in Gold Field Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration & others (2014) 35 ILJ 943 (LAC), I have only referred to arguments that I regard necessary to substantiate my findings and dispose of the dispute.
31. On a balance of probabilities, in my consideration of the absence of oral evidence presented and the arguments of the parties, I find that the applicant, has failed to successfully discharge the onus of proof that the respondent acted unlawfully in the non-payment of the applicant’s salary, specifically refusing to pay the applicant for the days which she claims she was incapacitated and for which such leave was unlawfully refused.
Award
1. The applicant has failed to successfully discharge its onus in this matter to prove the respondent’s failure to pay the applicant for the days which she claims she was incapacitated and for which such leave was unlawfully refused.
2. As a result of the aforesaid, the matter brought under case number ELRC121-20/21KZN is dismissed.
George Georghiades
ELRC Dispute Resolution P
Province: KwaZulu-Natal
Applicant: SADTU obo Mthembu, Khethiwe
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtually
Award Date: 15 February 2021
Arbitrator: George Georghiades
Commissioner: George Georghiades
Case No.: ELRC121-20/21KZN
Date of Award: 15 February 2021
In the ARBITRATION between:
SADTU obo Mthembu, Khethiwe
(Union / Applicant)
and
KwaZulu Natal Department of Education
(Respondent)
Union/Applicant’s representative: Mr. Siyabonga Zondi
Union/Applicant’s address: C 699 Mnambithi Road
P O Box 33
Kwamashu, 4360
Telephone: 031 509 6011
Mobile: 079 529 7618 or 071 907 2170
Telefax: 031 509 6011
Email: Mthembukhethiwe@gmail.com or
amilcabral.zondi92@gmail.com
Respondent’s representative: Mr. Itumeleng Makhooe
Respondent’s address: KZN Department of Education
Pinetown District, Durban North West Circuit
9 Voortrekker Road
Pinetown, 4001
Telephone: 031 907 5454
Facsimile: 031 907 5454
Mobile: 081 323 3262
Email: Itumeleng.Makhooe@kzndoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing between SADTU, obo Mthembu, Khethiwe and the KZN Department of Education was held under the auspices of the Education Labour Relation Council (“ELRC”), via Zoom Meetings. The matter was set down for arbitration on 14 January 2021, the dispute relating to the non-payment of salary. This dispute related to the enforcement of the provisions of the Basic Conditions of employment Act No. 55 of 1998 (BCEA).
2. In the applicant’s case, her dispute relates to the non-payment of her salaries and not an unfair labour practice. Section 69 of the ELRC Constitution makes provision for the enforcement of the BCEA conditions by the Council (ELRC). It is therefore upon this premise that I dealt with this dispute, as the applicant’s claim relates to the enforcement of salary payments.
3. The ELRC has jurisdiction to deal with disputes concerning the enforcement of the BCEA and unfair labour practice disputes.
4. Upon convening of the Arbitration hearing, the applicant’s representative, Mr. Siyabonga Zondi, advised the panellist that he had engaged with Mr. Makhooe earlier via telephone, to advise him that the applicant’s witness, a medical surgeon, was conducting surgery in theatre, and as a result, would not be available at 09h00 for the hearing.
5. The respondent’s representative, Mr. Itumeleng Makhooe, advised the applicant’s representative that he was ill and currently recovering from Covid-19, and that he was unable to attend to the arbitration hearing.
6. Mr. Zondi advised the panellist that the parties had mutually agreed to postpone the arbitration to a date suited to the panellist and the parties.
7. The panellist contacted Mr. Makhooe telephonically, who confirmed that he had contracted Covid-19 and that he was in self-isolation, recovering from Covid-19. He confirmed to the panellist that the parties had agreed to postpone the arbitration hearing to a date suitable to all the parties, at the panellist’s discretion.
8. The panellist issued a ruling that the matter be postponed to Thursday, 11 February 2021 at 09h00 via Zoom Meetings with the same meeting credentials.
9. The ruling ordered that should the respondent’s representative be unavailable to discharge the respondent’s case, the respondent was ordered to provide an alternative representative to attend the hearing on 11 February 2021. Similarly, the applicant was ordered to ensure that its witnesses were available to testify at the hearing on 11 February 2021 at 09h00. The ruling was timeously served on the parties by the Council’s Dispute Resolution case management officer.
10. The part-heard, adjourned arbitration hearing held on 14 January 2021 resumed on 11 February 2021 the notice of set-down, having been properly served on all parties.
11. The proceedings were conducted in English and were manually and digitally (video and audio) recorded.
12. The applicant was represented by Mr. Siyabonga Zondi, trade union representative of the South African Democratic Teachers Union (SADTU), while the respondent was represented by Mr. Itumeleng Makhooe, assistant director in the Labour Relations Unit of the KZN Department of Education. The parties had previously submitted their evidence bundles upon which they intended relying upon to the Council via email, who in turn, had provided these to the panellist.
PRELIMINARY ISSUES
13. The applicant and her representative stated that despite having been served the panellist’s ruling provided on 14 January 2021 and the notice of set down of arbitration for 11 February 2021, due to a misunderstanding, they had failed to secure the attendance of their witness.
14. The applicant’s representative requested that a medical report from his witness be entered into evidence to assist in proving the applicant’s case. The respondent’s representative objected to this, referring to the parties’ pre-arbitration minutes wherein the parties agreed to the manner in which documentary evidence is to be dealt, being that no further documented evidence would be admitted.
15. Upon inquiry by the panellist as to whether the document referred to would be submitted during the applicant’s leading of evidence, the applicant’s representative stated that this would not be possible and would only be available after the conclusion of the arbitration proceedings.
RULING IN RESPECT OF PRELIMINARY ISSUES
16. The parties were timeously served the notice of set-down for the arbitration hearing on 11 February 2021 at 09h00. The parties were also served with the panellist’s ruling on 14 January 2021 wherein the applicant was ordered to ensure that its witnesses were available to testify at the arbitration hearing on 11 February 2021.
17. Based on the intended late submission of the envisaged document, the panellist ruled that notwithstanding the objection by the respondent’s representative, if the document was to be permitted as evidence, the respondent, and/or any of its expert witnesses would not be afforded an opportunity to cross-examine the person who was the author of the document, which was prejudicial to the respondent.
18. The panellist subsequently ruled that the applicant representative’s request to submit documentary evidence from the witness who was not advised of the arbitration hearing was refused.
ISSUES TO BE DECIDED
19. This matter was brought in terms of the enforcement of the provisions of the Basic Conditions of employment Act No. 55 of 1998 (BCEA). As the dispute relates to the non-payment of salary, section 69 of the ELRC Constitution makes provision for the enforcement of the BCEA conditions by the Council (ELRC).
20. I am tasked to determine whether the respondent unlawfully failed to pay the applicant her salary while she was incapacitated and should relief be required, to order the appropriate relief.
BACKGROUND TO THE DISPUTE
21. It is the applicant’s case that the respondent rejected the applicant’s application for incapacity leave which was taken by the applicant during 29 August 2019 and 20 September 2019 based on medical reports submitted. By failing to consider these reports, the respondent failed to follow its own policies and procedures in respect of incapacity and ill health and as a result, the respondent unlawfully failed to pay the applicant’s full salary.
22. The relief sought by the applicant is the repayment by the respondent to the applicant in the amount of R 31 816.00 (thirty one thousand eight hundred and sixteen rand), that which was deducted over a period of six months, being the portion of her salary for the leave days that were not approved
23. The respondent disputed these allegations, referring as common cause to clause 2.4 of the minutes of the pre-arbitration conference, wherein the parties agreed that incapacity leave required the report of a medical practitioner justifying such leave. Upon submission of such reports, the respondent submits these to Tandile Health Risk Management, being the KZN Department of Education’s health risk management company, who in turn, provide a report and recommendations in respect of the applicant’s application for leave relating to incapacity.
24. The respondent stated that the applicant’s application for incapacity leave was properly considered but declined. The respondent stated that it would prove this by referring to the applicant’s grievance and response thereto in its evidence bundle. The respondent would call two witnesses to lead evidence in this regard.
25. As the matter referred to the ELRC by the applicant relates to the non-payment of salary, the onus of proof rests upon the applicant for this claim to succeed.
26. Upon the conclusion of their submissions, both parties were requested to address me in respect of their closing arguments. Both parties did so in writing, and I have considered these in my award below.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE:
The applicant’s representative, Mr. Siyabonga Zondi, testified that:
24. In the absence of his only witness, he would not lead any evidence, but reserved the right to cross-question the respondent and/or its witnesses once they had led evidence.
The applicant closed its case.
THE RESPONDENT’S CASE
The respondent’s representative, Mr. Itumeleng Makhooe, testified as follows:
25. As the onus of proof rested with the applicant, who failed to lead any evidence at these arbitration proceedings and by so doing, failed to prove its case, the respondent would not lead any evidence. The respondent would rely on the facts of law in its rebuttal.
The respondent closed its case.
ANALYSIS OF EVIDENCE AND ARGUMENTS
26. In the recent decision of The South African Social Security Agency v NEHAWU and others (reportable case number C233/14 delivered on 30 April 2015), the Cape Town Labour Court had to decide whether an arbitration award, in which the commissioner based her finding purely on documentary evidence in the absence of a stated case, was reviewable in terms of s145 of the Labour Relations Act, No 66 of 1995 (LRA).
27. A 'stated case' – also referred to as a 'special case' – is a written statement of facts, agreed to by the parties, so that a judiciary authority can apply the law to the agreed facts. Importantly, the NEHAWU decision did not involve a stated case. Rather – as noted in the commissioner's arbitration award – the parties had agreed that no evidence would be led and that the case would be decided on the written submissions and bundles of documentary evidence.
28. In referring to the benchmark case of Gold Field Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration & others (2014) 35 ILJ 943 (LAC), Rabkin-Naiker J failed to comprehend how a dispute which "hinges on the fairness of the conduct of an employer can be decided without the parties giving oral evidence".
29. The important principle to be extracted from this case is that, in the absence of a stated case, oral evidence must be led on the material facts in dispute. Commissioners and arbitrators should not condone an agreement between the parties to lead no oral evidence.
30. No evidence was led by the applicant, upon whom the onus to prove lies. I have not considered evidence and arguments that the applicant failed to raise at the arbitration proceedings. Subsequently, the respondent representative has taken a position that in the absence of any evidence having been led by the applicant, there was no evidence that required any rebuttal. In the absence of any evidence led, in line with the findings of Naiker J in Gold Field Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration & others (2014) 35 ILJ 943 (LAC), I have only referred to arguments that I regard necessary to substantiate my findings and dispose of the dispute.
31. On a balance of probabilities, in my consideration of the absence of oral evidence presented and the arguments of the parties, I find that the applicant, has failed to successfully discharge the onus of proof that the respondent acted unlawfully in the non-payment of the applicant’s salary, specifically refusing to pay the applicant for the days which she claims she was incapacitated and for which such leave was unlawfully refused.
Award
1. The applicant has failed to successfully discharge its onus in this matter to prove the respondent’s failure to pay the applicant for the days which she claims she was incapacitated and for which such leave was unlawfully refused.
2. As a result of the aforesaid, the matter brought under case number ELRC121-20/21KZN is dismissed.
George Georghiades
ELRC Dispute Resolution P