Commissioner: George Georghiades
Case No.: ELRC358-20/21NW
Date of Award: 15 May 2021
In the ARBITRATION between:
SADTU obo Job, Arrie
(Union / Applicant)
NORTHERN CAPE DEPARTMENT OF EDUCATION
Union/Applicant’s representative: Mr. Benjamin Tumelo Tshilo
Union/Applicant’s address: SADTU
TJ Madlala Region, 45 Dekock Street, Vryburg, 8600
Mobile: 079 494 2367 / 0712513453
Email: TTshilo@SADTU.org.za and email@example.com
Respondent’s representative: Mr. Martin Keetile
Respondent’s address: 1305 Albert Luthuli Drive
Private Bag X 2044
Telephone: 018 – 388 4104
Facsimile: 018 – 388 1703
Mobile: 076 154 1717
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing between SADTU obo Job, Arrie and the North West 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 18 March 2021, the nature of the dispute being the Interpretation and Application of a collective agreement. The arbitration hearing was conducted over two days and finally concluded on 07 May 2021.
2. The proceedings were conducted in English and were manually and digitally (video and audio) recorded.
3. Both parties were present. The applicant was represented by Mr. Benjamin Tshilo, while the respondent was represented by Mr. Martin Keetile.
4. The parties agreed on a common bundle of evidence prepared jointly by the parties for reference at this arbitration hearing.
5. No preliminary issues were raised by the parties.
ISSUES TO BE DECIDED
6. This matter was referred to the ELRC as a dispute in terms of Sec 24(2), namely Interpretation and Application of a Collective Agreement. The parties to the dispute agreed to have the matter settled by way of a stated case, as it revolved around a question of law, rather than a question of fact.
7. I am tasked to determine whether the respondent failed to investigate the nature and extent of the applicant’s incapacity within the 30 days as prescribed by the collective agreement, thereby putting the Respondent in breach of clause 9.4 of ELRC Resolution 7 of 2001 and whether the applicant is entitled to the reimbursement of monies in respect of leave periods for which his applications were declined.
8. Should relief be required, to order the appropriate relief.
9. The applicant requested that should I find in his favour, that that the respondent approve the temporary incapacity leave for the periods in question and reimburse the applicant for all monies deducted for the aforementioned periods.
BACKGROUND TO THE DISPUTE
10. The Applicant, Mr. Arrie Job is employed by the Respondent as an educator at John Frylink Secondary School in the DR Ruth Segomotsi Mompati district, in the Naledi circuit. The Applicant’s basic salary is R29 941.00 per month.
11. The Applicant applied for Temporary Incapacity Leave on 27 August 2018, for the periods 24 April 2018 to 26 April 2018 and 17 July 2018 to 28 September 2018.
12. The applicant averred that the respondent communicated the outcome of the first leave period on 27 August 2019 and that of the second leave period on 05 March 2020, declining leave for both periods. The respondent has implemented Leave Without Pay deductions in respect of the two periods for which the applicant applied.
13. The respondent disputed this, claiming that the leave applications were made on 18 May 2018 and 24 July 2018 respectively and the outcomes thereof were provided to the applicant on 12 September 2019 and 16 March 2020, respectively.
14. The respondent further disputed that the conduct of the respondent cannot be considered to be unreasonable, invalid, arbitrary or of no effect despite a lack of compliance on the part of the respondent on the stipulated time frames, as the respondent ensured that no prejudice was suffered by the applicant.
15. As the dispute was referred in respect of the respondent’s alleged failure to correctly interpret and apply a collective agreement, the onus to prove this, lies with the applicant.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S STATED CASE:
16. Clause 9 of ELRC Resolution 7 of 2001 deals with temporary incapacity leave. Clause 9. 4 provides that:
“The Head of Department may grant a maximum of 30 consecutive working days leave with full pay during which period an investigation must be concluded into the nature and extend of the incapacity. The investigation shall be conducted in accordance with item 10(1) of Schedule 8 of the Labour Relations Act, 1995.”
17. The Policy and Procedure on Incapacity Leave and Ill-heath Retirement (PILIR) is a ministerial determination which also deals with temporary incapacity leave. Clause 6.4 of the PILIR provides that the employer, shall be responsible to process applications and complete reports within the specified time frames.
18. Clause 7.2.9 of the PILIR relating to applications for temporary incapacity leave for short periods provides that:
“The employer must within 30 working days after receipt of both the application form and the medical certificate referred to in paragraphs 7.1.4 and 7.1.5, approve or refuse temporary incapacity leave granted conditionally. In making a decision the employer must apply his/her mind to the medical certificate (with or without describing the nature and extend of the incapacity) contemplated in 18.104.22.168, medical information/records contemplated in 22.214.171.124 (if the employee consented to disclosure) the Health Risk Manager’s advice, the additional information supplied by the employee in paragraph 126.96.36.199 (if any) and all other relevant information available to the Employer, and based thereon approve or refuse the temporary incapacity leave granted conditionally, on conditions that the Employer may determine, e.g. to return to work, etc.”
19. The PILIR makes the 30-day requirement peremptory by substituting the word “may” in the aforementioned collective agreement with the word “must”. Clause 188.8.131.52(e) of the PILIR is identical to the aforementioned clause, except that it relates to application for temporary incapacity leave for long periods.
20. Clause 184.108.40.206 of the Personnel Administrative Measures, 1996 (PAM), has the same operation as the abovementioned clauses and reads as follows:
“The HoD must, within 30 working days after receipt of both the application form and medical certificate, approve or refuse the temporary incapacity leave granted conditionally. In making a decision, the HoD must apply his/her mind to the medical certificate (with or without describing the nature and extent of the illness or injury) medical information/records (if the employee consented to disclosure), the Health Risk Manager’s advice, the information as supplied by the educator and all other relevant information available to the HoD and based thereon approve or refuse the temporary incapacity leave granted conditionally, on conditions that the HoD may determine, e.g. return to work etc..”
As is the case in the PILIR, in the PAM the word “may” also hardens to “must.”
21. The collective agreement, read with PILIR and the PAM, requires that an investigation be carried out by the employer and an outcome/report be given by the employee within 30 days of her (the employer) receiving the application for temporary incapacity leave.
22. Both periods of temporary incapacity leave in question were applied for on 27 August 2018. The outcome for the first period applied for is dated 27 August 2019 and is 350 days late. The outcome for the second period applied for is dated 05 March 2020 and is 439 days late.
23. Both reports were based on the medical evidence which the applicant obtained from his treating doctors, while the reports make no mention of the of the respondent assessing the Applicant in terms of item 10(1) of Schedule 8 of the Labour Relations Act. The Respondent therefore failed to investigate the nature and extent of the Applicant’s incapacity and issue an outcome or report within the 30 days as prescribed by the collective agreement. The respondent is in breach of ELRC Resolution 7 of 2001.
24. As neither ELRC Resolution 7 of 2001, nor PILIR and PAM are silent where the employer fails to give an outcome/report within 30 days as required, case law guides the required recommendations in this regard.
25. In PSA and Another v PSCBC and Others (D751/09)  ZALCD 3, the Labour Court dealt with the failure of the employer to approve or refuse temporary incapacity leave within the 30-day period. Cele, J commented as follows after an employee was refused temporary incapacity leave:
“The limited facts of this matter suggest that on 24 June 2008 the third respondent had finalized all investigations and had made its decision which it communicated to Ms. Gouvea by a letter it issued to her on that day. She had to report back at work on 1 July 2008. From the given facts, as I understand them, a report was issued by the Health Risk Manager declining the application for a periodical temporary incapacity leave for 4 December 2007 to 30 June 2008. This report sought to have a retrospective effect. The consequence of a retrospective effect is that it amounts to an unreasonable and arbitrary exercise of a discretion with unfair consequences to an employee. Nowhere in clause 7.5 of Resolution 7 of 2000 (PSCBC), is there a suggestion that the employer may not grant further sick leave after the lapse of a 30-day period. On the contrary, as investigations shall be in accordance with Item 10 (1) of Schedule 8 of the Act, a further sick leave period may be granted to the employee.”
26. It is trite that ELRC Resolution 7 of 2001, PILIR and PAM all derive from the abovementioned PSCBC Resolution 7 of 2000. The Court held that a late refusal of temporary incapacity leave offends the prohibition on retrospectivity. The Court makes it clear that an employee suffers prejudice through an outcome that is issued outside the 30-day period where a temporary incapacity leave application is concerned.
27. The decision of Judge Cele has since been supported by further case law in Department of Roads and Transport v JC Robertson, PSCBC and Others (PR 40/14)  ZALCPE, wherein Lallie J held at paragraph 7, that:
“The arbitrator’s interpretation of clause 7.5.1. (b) of Resolution 7/2000 which is based on the decision on PSA HC Gouvea (supra) cannot be faulted. When exercising the discretion to grant or refuse TIL, the applicant was enjoined by Resolution 7/2000 to take into account provisions 10 (1) of Schedule 8 to the Labour Relations Act 66 of 1995 as amended (the LRA). The interpretation the arbitrator gave to clause 7.5.1. (b) is consistent with the letter and spirit of the LRA. His decision is not based only on giving a peremptory meaning to the word “shall” in clause 7.5.1 (b) of Resolution 7/2000. He therefore conducted the correct enquiry in the correct manner and reached a reasonable decision”.
28. Judge Lallie , in the above quoted paragraph, supported the reasons for the decision arrived at by Cele J, namely that the report on the investigation of the nature and extent of the temporary incapacity of an employee, having so applied for such leave, should be investigated and the report be given within the thirty days as stipulated in PILIR.
29. The respondent’s decision to refuse the temporary incapacity leave is invalid and of no effect. The respondent used its discretion to approve or refuse temporary incapacity leave arbitrarily and unreasonably. The deduction of monies from the applicant’s salary for the periods 24 April 2018 to 26 April 2018, and 17 July 2018 to 28 September 2018 is therefore based on an invalid decision.
30. The temporary incapacity leave for the two periods for which leave was applied, should be granted and the monies deducted for the period in question should be paid back to the applicant.
31. Despite arbitration awards not considered as case law, in ELRC cases PSES137-17/18EC, PSES77-17/18EC and PSES 719-18/19 KZN, the arbitrators were faced with the same question, namely, whether failure to inform an educator of the outcome of a temporary incapacity leave application within thirty days put the respondent in breach of the ELRC Resolution 7 of 2001/PILIR/PAM. On each occasion, the arbitrators found that failure to adhere to the thirty-day requirement putting the respondent in breach and ordered that the employees were entitled to have the leave approved.
THE RESPONDENT`S STATED CASE:
32. The respondent conceded that in terms of the Collective Agreement, read with PILIR and the PAM, the 30-day time frames were not complied with by the respondent. As a result of this omission or failure, the applicant was not automatically entitled to the payment of declined leave applications. The delay of the respondent dealing with the second leave application was caused by the applicant’s submission of an invalid application, which was required to be re-submitted.
33. The applicant was not prejudiced by the respondent, as it did not refuse or fail to pay the applicant’s salary. The respondent carried out its obligations by processing applications and compiling reports, albeit outside of the prescribed 30-day period.
34. Despite the applicant stating that no mention was made of any assessment conducted by the respondent in its reports, the Health Risk Manager would have been required to assess the applicant’s reports in order to have provided a report declining the applicant’s leave. The applicant’s claim in this regard, cannot be accepted.
35. The comments as made by Cele J in paragraph 23 above, where reference is made that it is prescribed that investigations are to be conducted in line with 10.1 of schedule 8 of the Act, further suggest that sick leave may be granted.
36. The applicant suffered no retrospective effect amounting to an unreasonable and arbitrary exercise of discretion with unfair consequences. The applicant was granted conditional sick leave, pending the outcome of his assessment. There is no evidence to indicate that the applicant’s leave was terminated after the lapse of the 30-day period. The deduction of leave without pay was applied only for the periods for which leave was applied and nothing more. This infers that the respondent complied with what the Court held.
37. The respondent did not deprive the applicant of his salary during the assessment period for which his conditional sick leave for which he had applied, was being conducted. Leave without pay was only implemented after the outcome of the respondent’s medical assessment and then only, for the days that were declined and with the reasons thereto, clearly provided. Unlike the circumstances in the PSA and Another v PSCBC and Others matter, the applicant did not suffer any prejudice as a result of the leave application outcome being provided outside of the 30-day period. This was due to the preventative actions by the respondent.
38. Despite the lack of compliancy relating to the 30-day time period, the conduct of the respondent cannot be considered to be unreasonable, invalid arbitrary or of no effect. The respondent granted leave with full pay beyond the 30-day period in order to mitigate any administrative issues that arose. Failure by the respondent to have complied with the 30-day time period, does not entitle the applicant to the approval and payment of leave that was reasonably declined.
39. As stipulated in clause 9.6 of Resolution 7 of 2001, the applicant was required to submit a grievance relating to any non-compliance on the part of the respondent and no such grievance was ever lodged. This infers that the applicant is in breach of the Resolution in respect of his prayer for the reimbursement of all monies deducted for the periods for which his leave were declined.
ANALYSIS OF EVIDENCE AND ARGUMENTS
40. I considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
41. I am required to establish whether the respondent failed to investigate the nature and extent of the applicant’s incapacity within the 30 days as prescribed by the collective agreement. Should I find in this regard, it follows that the respondent is in breach of clause 9.4 of ELRC Resolution 7 of 2001, read with clause 6.4, clause 7.2.9 and clause 220.127.116.11(e) of PILIR, and further read with clause H.5.3.10 of the PAM.
42. I am further required to determine whether, as a result of the respondent’s failure to conduct the investigation within the stipulated time frame (the breach), the applicant was prejudiced.
43. Based on the outcome of my findings, I am required to establish whether the applicant is entitled to be reimbursed for the leave periods for which he was declined.
44. Insofar as the respondent’s compliance with the prescription of the collective agreement, I am required to consider two aspects. These are (1) whether the respondent conducted some form of investigation or assessment insofar as the applicant’s incapacity and (2) whether the respondent did so within the prescribed 30-day period.
45. I will firstly deal with the adherence to the 30-day time period. That the respondent failed to comply to the 30-day prescribed time frame is not in doubt. Despite the submissions of the applicant to this effect (notwithstanding the correctness of the dates of application), the respondent, by its own admission conceded that it failed to approve or refuse temporary incapacity leave granted conditionally within the prescribed period.
46. Insofar as whether the respondent conducted an investigation or assessment into the applicant’s incapacity, the applicant submitted that both reports provided by the respondent were based on the medical evidence which the applicant obtained from his treating doctors. It follows then, that in order for the respondent to have provided outcome reports with reasons for the declining thereof clearly stated (as submitted by the respondent) declining the application for leave, despite the assessments having been based only on the applicant’s submitted medical reports and not its own, the respondent did in fact, conduct an assessment (underlining my own emphasis).
47. The applicant’s contention that the respondent’s outcome reports make no mention of the of the respondent’s actual assessment of the applicant in terms of item 10(1) of Schedule 8 of the Labour Relations Act, cannot succeed, as it would not have been possible for the respondent to have arrived at outcome reports with reasons for declining the applicant’s application for leave, unless an assessment of some kind, was conducted.
48. This leads me to the next inquiry, being whether the applicant was prejudiced by the actions and/or omissions of the respondent in para 45 and 46 above. Clause 7.2.9 of the PILIR clothes the employer with the discretion to approve or refuse temporary incapacity leave granted conditionally. Similarly, Clause 18.104.22.168 of the Personnel Administrative Measures, 1996 (PAM), also prescribes that the Head of Department (HoD) must approve or refuse temporary incapacity leave granted conditionally.
49. This suggests that the employer is within its right to refuse temporary incapacity leave granted conditionally and in doing so, my view is that if the application for leave is refused and submitted to the applicant within the 30-day period, the employee is not prejudiced.
50. However, the prejudice towards the applicant is effected by the lateness of the outcome report and not by the decision of the respondent to refuse the leave. In isolation and within the prescribed time frames, ordinarily, no prejudice would have been suffered by the applicant. The respondent’s failure to have complied with the prescribed time frames prompted or effected the real prejudice suffered in this regard, by the applicant.
51. I am guided by Cele J in the PSA and Another v PSCBC and Others (Gouvea) matter, that a late refusal of temporary incapacity leave offends the prohibition on retrospectivity. The court makes it clear that an employee suffers prejudice through an outcome that is issued outside the 30-day period where a temporary incapacity leave application is concerned (underlining my emphasis).
52. This view was further supported in Department of Roads and Transport v JC Robertson, PSCBC and Others by Judge Lallie, in supporting the reasons for the decision arrived at by Cele J, namely that the report on the investigation of the nature and extent of the temporary incapacity of an employee, having so applied for such leave, should be investigated and the report be given within the thirty days as stipulated in PILIR.
53. In conclusion, and after having considered all of the aforesaid, I find on a balance of probabilities that as a result of the respondent’s failure to investigate the nature and extent of the applicant’s incapacity within the 30 days as prescribed by the collective agreement, the Respondent is in breach of clause 9.4 of ELRC Resolution 7 of 2001, read with clause 6.4, clause 7.2.9, clause 22.214.171.124(e) of PILIR, and further read with clause H.5.3.10 of the PAM.
54. As a result of this breach, as the applicant was substantially prejudiced, the applicant should be reimbursed for the deduction of the two leave periods for which he applied. As the evidence bundle contained only the payslip of the applicant proving that such deductions were made by the respondent, no evidence was provided to quantify all the deductions made by the respondent in respect of leave pay.
55. In light of the omission of the total amount deducted in respect of the 2 leave periods for which deductions were made, I requested that the applicant submit proof of all deductions made. The applicant submitted officially stamped reprint copies of payslips from the PERSAL system, obtained from the Salary Control department of the respondent to prove the amounts deducted.
56. I am satisfied that the total amount deducted by the respondent for the two leave periods claimed, amounts to R 22 176.96. This is made up of R 19 500.00 for the period 24 April 2020 to the date of this award and R 2 676.96 in respect of the period 26 August 2020 till 18 September 2020.
1. The respondent, the North West Department of Education, is ordered to approve the temporary incapacity leave for periods 24 April 2018 - 26 April 2018 and 17 July 2018 - 28 September 2018 and reimburse the applicant, Mr. Arrie Job, in the amount of R 22 176.96 (twenty-two thousand one hundred and seventy six rand and ninety six cents), deducted for the aforementioned periods.
2. The approval of the said leave and the subsequent reimbursement of monies deducted for the relevant periods to be made by no later than 25 June 2021.
ELRC Dispute Resolution Panellist