Case Number: ELRC 1020-19/20 FS
Province: Free State
Applicant: SAOU obo TE MAGWA
Respondent: HOD, DEPARTMENT OF EDUCATION FS
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 9 March 2021
Arbitrator: Seretse Masete
Case No.: ELRC 1020-19/20 FS
Date of Award: 09/03/2021
In the ARBITRATION between:
SAOU obo TE MAGWA
(Union / Applicant)
DEPARTMENT OF EDUCATION FREE STATE
Union/Applicant’s representative: Hester Human (SAOU)
Union/Applicant’s address: 27th Street, Arboretum, Bloemfontein 9305
Telephone: 051 430 1531
Cell: 076 013 8150
Respondent’s representative: Thulo Ntsuke
Particulars of proceedings and representation
1. The matter was held virtually on 11 November 2020 and all parties managed to link on zoom.
2. The Applicant, TE Magwa (employee) was represented by Thulo Ntsuke while the respondent, Department of Education Free State, (employer), was represented by SAOU provincial assistant secretary, Hester Human.
3. The proceedings were in English and virtually conducted.
Issues to be decided
4. I have to decide whether or not the conduct of the employer by effecting leave without pay from the employee constituted an unfair Labour practice.
5. I further have to determine an appropriate remedy should I find that the employer committed an unfair labour practice against the employee.
Background to the dispute
6. The employee was employed as an educator at Nzama Primary School since 01 July 2007 earning a basic salary of R24404-50 per month.
7. She procedurally applied for a sick leave on 18 October 2019 but to her surprise a leave without pay was effected on her salary regardless having complied with all the sick leave requirements.
8. Both parties agreed to submit heads of arguments on or before the 21st of November 2020. Parties were reminded that the courts in a case involving PSA v/s Department of Justice and Constitutional Development, discouraged the submission of heads of arguments without leading evidence. Both parties, nevertheless, insisted that they knew about that case law but it was their agreement that they only wanted to submit heads of arguments.
9. The employee party submitted its heads of arguments with a bundle of documents but the employer did not.
Survey of evidence and arguments
The Employees’ version
The employee party made its arguments as follows;
10. On 18 October 2019, the employee applied for a sick leave in terms of the Basic Conditions of Employment Act (BCEA) of 1997, the Personnel Administrative Measures (PAM) and the Determination and Directive on leave in the Public Service. The employer awarded the employee an unpaid sick leave alleging that she transgressed the 8-week rule. The leave without pay was implemented against the employee without prior notice, without requesting medical certificate and without obtaining a written consent of the employee. The 8-week rule provides that the employer is not required to pay an employee if (a) the employee has been absent for more than two consecutive days or (b) on more than two occasions during an 8-week period and on request by the employer does not produce a medical certificate. The employer applied the 8-week rule incorrectly to the employee implying that the employee abused her sick leave. The employer effected leave without pay to the employee without complying with Section 34 (2) of the BCEA which requires the employee to be given an opportunity to indicate why the deduction should not be made. It was further held in court case between Shenaaz Padayachee v/s Interpak Books (Pty) Ltd, case number D243-12 which held that an employer may make such deductions provided prescribed formalities such as subjecting the employee to the internal hearing and a written agreement to reimburse the employer are complied with.
The employer’s evidence and arguments
11. The employer instead of submitting its heads of arguments, its representative, Mr Thulo Ntsuke, sent an email on 23 November 2020, indicating that the respondent has decided to settle the matter. Heads of arguments were as a result not submitted by the employer. That email was copied to the Council. The applicant party later wrote to the council citing that the employer did not give it a copy of the said settlement agreement. The employer was subsequently reminded of this matter but to no avail.
Analysis of the evidence and arguments
12. Parties agreed to submit heads of arguments on or before 21 November 2020. It was only the applicant party (employee) which submitted its heads of arguments. An email was written to the employer representative, Thule Ntsuke on 22 November 2020 reminding him to submit the heads of arguments as promised. Thule Ntsuke responded to the email on 23 November 2020 indicating that “ kindly note the respondent has decided to settle the matter”. That email was directed to me and the employee’s representative, Hester Human, and Moshe Mogotsi, the CMO of the council was copied. I therefore took it that the matter has been settled internally and finalised and I wrote an email to the Council on 23 November 2020, where the employer representative, Thulo Ntsuke was copied, requesting the employer to give us a proof that the matter has been settled. The employer representative did not respond. I then wrote an email to the Council on 06 December 2020 and Thule Ntsuke was copied indicating that should the employer not submit the heads of arguments as promised, I would be forced to continue issuing an award using the information at my disposal. I waited until the representative of the employee, Hester Human, sent an email to the council on 26 February 2021 enquiring about the matter.
13. Having been confronted with the events in paragraph 12 above, I have decided to issue out an award based on the information at my disposal. The employee indicated that she applied for a sick leave on 18 October 2019 where she followed all the necessary requirements in terms of leave policies and the BCEA. The employer without verifying its facts just implemented a leave without pay against her without consulting her as required by legislation and policies. The employer was given an opportunity to rebut the employee’s aversion but it chose not to. The employer instead wrote an email indicating that it has decided to settle the matter but that was not done as well. Section 34 (1) of the BCEA provides that, an employer may not make any deduction from an employee’s remuneration unless- (a) subject to subsection (2), the employee in writing agrees to the deductions in respect of a debt specified in the agreement. Subsection (2)(b) provides that, a deduction in terms of subsection (1)(a) may be made to reimburse the employer for loss or damages only if- (b)the employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deduction should not be made. These provisions of the BCEA, were echoed and emphasised by the courts in Shenaaz Padyachee v/s Interpak books (Pty) Ltd delivered on 04 March 2014, case number D243-12. I am therefore satisfied that the employer committed an unfair labour practice against the employee when effecting a leave without pay (deductions) without consulting the employee.
14. The employee requested as a relief sought, that the deduction and or the leave without pay against her be reversed. I do not see any reason for me not to grant the employee the relief she prayed for. Having considered the relief sought by the employee, I have decided to make an order that the employer must reverse the deduction and or the leave without pay imposed to the employee.
15. The Employer, Department of Education Free State, committed an unfair labour practice by imposing and effecting a leave without pay (deduction) against the employee, TE Magwa.
16. The employer is ordered to reverse the deduction and or leave without pay against the employee immediately on or before the second date/day of receiving this award. The reversal of this transaction means that the employee must be reimbursed the money deducted from her salary.
17. No order as to cost.