ELRC210-20/21NW
Text
ELRC210-20/21NW
Text
Award Date:
31 May 2021
Text
Commissioner: D Smith
Case No.: ELRC210-20/21NW Date of Award: 31 May 2021
In the ARBITRATION between:
MALGAS
(Union / Applicant)
and
DEPARTMENT OF EDUCATION LIMPOPO
(Respondent)
Union/Applicant’s representative: Ms Matshidiso Molema
Tel: 0182932822 Telefax: 0182932847, 0867182389
Email: annelize@scholtzattorneys.co.za
Respondent’s representative: Mr. M M Keetile
Tel: 0183884108
Email: martink@nwpg.gov.za
DETAILS OF HEARING AND REPRESENTATION:
1. The dispute was referred to the Education Labour Relations Council (“Council”) in terms of Section 186(2)(a) of the Labour Relations Act, No. 66 of 1995 (“LRA”). It was heard video conference on 26 March 2021.
2. The Applicant, Mr. Malgas (“Malgas”) was represented Ms Matshidiso Molema from Schöltz Attorneys. The Respondent was represented Mr. Martin Keetile (“Keetile”), its SES: Disputes.
3. The process was digitally recorded, and I took handwritten notes.
4. The parties agreed to submit written argument as follows:
24 November 2020 Applicant 1 April 2021. Received 6 April 2021
30 November 2020 Respondent 8 April 2021. Received 30 April 2021
3 December 2020 Applicant (if necessary) 12 April 2021
ISSUE TO BE DECIDED:
5. Whether the Respondent committed an unfair labour practice, with reference to the relevant provisions of ELRC Resolution 7 of 2001 and the Policy for Incapacity Leave and Ill-Health Retirement (herein after “PILIR”) pertaining to benefits, in particular a dispute involving the Respondent’s failure to consider and decide upon applications by the Applicant for temporary incapacity leave, within the 30-day period, as prescribed by the relevant provisions of the ELRC Resolution 7 of 2001 and PILIR.
6. If I find in the positive, I must decide upon an appropriate remedy.
BACKGROUND:
7. Malgas was employed as post level 1 educator. He was diagnosed with palate cancer on 11 November 2019. He earned R33997.35 per month.
8. The dispute pertains to the Respondent’s failure to consider and decide on Malgas’ applications for temporary incapacity leave; which resulted in him being placed on unpaid leave. The Applicant referred this dispute to the ELRC as a consequence thereof;
REMEDY
9. Malgas sought to paid temporary incapacity leave for the period from April 2020 to date, and that the Respondent be ordered to amend his leave records, in accordance with this award, and to effect payment within 7 days from the date of the issuing of the Arbitration Award.
SURVEY OF EVIDENCE AND ARGUMENT:
10. For purposes of this award, I do not intend, to record verbatim evidence led, submissions made and or arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented in rendering this award.
11. Most of the evidence was common cause.
APPLICANT’S VERSION
12. Malgas submitted that:
12.1. He was, at all material times, employed by the Respondent as an Educator (Post Level 1) at the Boschpoort Combined School, with Persal Nr 11700823;
12.2. He started suffering adverse symptoms during May 2019 and was subsequently diagnosed with palate cancer. He has since then been receiving chronic treatment, including chemotherapy and radiotherapy;
12.3. On or about 11 November 2019, he applied for temporary incapacity leave (long period) and submitted the application by hand to the Principal, Mr. Khumalo (“Khumalo”). He received his normal monthly remuneration up to the end of March 2020.
12.4. During May 2020, it was brought to his attention that the Circuit Manager responsible for his area had instructed that his salary be withheld. Malgas was then advised by the Circuit Manager to lodge a formal grievance, which he submitted to Khumalo at the beginning of June 2020. He made further enquiries thereafter as to the outcome of the grievance but was ultimately informed that his grievance was rejected. He was never provided with any formal confirmation as to the outcome of the said grievance;
12.5. On or about 23 July 2020, he submitted a further application for temporary incapacity leave (long period) by hand to Khumalo, which has never been accepted, nor rejected by the Respondent;
12.6. He has not received payment of his benefits and remuneration since April 2020.
Legal issues
13. The Respondent failed/refused to consider the applications for temporary incapacity leave within 30 days of the respective applications and therefore has committed an unfair labour practice;
14. The Respondent’s obligations are set out in Clause 9 of ELRC Resolution 7 of 2001 , which governs temporary incapacity leave in terms of:
“9.4 The Head of Department may grant a maximum of 30 consecutive working leave days with full pay during which period an investigation must be conducted into the nature and extent of the incapacity. The investigation shall be conducted in accordance with item 10(1) of Schedule 8 of the Labour Relations Act, 1995.”
15. The Resolution forms part of Malgas’ conditions of service as it constitutes a Collective Agreement and is therefore binding. It forms part of the Applicant’s conditions of service. In terms of Clause 9.4, of Resolution 7 of 2001, the Respondent may:
“Within 30 days after receipt of an application for temporary incapacity leave that has been certified by attending a medical practitioner grant 30 consecutive leave days, during which time they may conduct an investigation in accordance with Item 10(1) of Schedule 8 of the LRA”;
16. The obligation on the Respondent is emphasized in paragraph 7.3.5.1(e) of PILIR:
“The Employee must within 30 working days after receipt of both the application form and medical certificate referred to in paragraphs 7.1.4 and 7.1.5.2, approve or refuse temporary incapacity leave granted conditionally, or where applicable the approval or refusal of additional temporary incapacity leave. In making a decision, the Employer must apply his / her mind to the medical certificate (with or without describing the nature and extent of the incapacity) contemplated in paragraph 7.1.5.2, medical information / records contemplated in paragraph 7.1.5.4 (if the employee consented to disclosure), the Health Risk Manager’s advice, the additional information supplied by the employee in paragraph 7.1.5.3 (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 instruct the employee to return to work while the secondary assessment is undertaken. Such instruction should, however, be considered and applied with circumspect. However, should the employee fail to adhere to such an instruction s/he expose him / herself to possible disciplinary action.”
17. The Respondent failed to comply with the specific procedural requirements in terms of PILIR which prescribe the following in particular paragraph 7.3.5.1(f):
“(f) If the Employer –
(i) approves the temporary incapacity leave grated conditionally, such leave must be converted into temporary incapacity leave; or
(ii) refuses the temporary incapacity leave granted conditionally, s/he must notify the employee in writing –
A. of the refusal;
B. of the reason for the refusal;
C. that if s/he is not satisfied with the Employer’s decision, that s/he may lodge a grievance as contemplated in par.10; and
D. that s/he must notify the Employer in writing within 5 working days of the date of the notice to him/her, whether or not the period of conditional incapacity leave must be covered by annual leave (to the extent of the available annual leave credits) or unpaid leave and that, if s/he fails to notify the Employer of his/her choice, the period will be covered by unpaid leave.”
18. In terms of Clause 9, in particular Clause 9.6, of Resolution 7 of 2001, the Applicant has the right to access the grievance procedure and the relevant dispute resolution procedures:
“9.6 if the educator is of the view that she or he has been unfairly treated as regards the granting of additional sick leave, she/he has the right to follow the grievance procedure and the relevant dispute resolution procedure in order to settle the matter”.
19. Malgas is entitled to paid temporary incapacity leave in respect of the period as listed in paragraphs 6.3 herein below, premised thereon that:
19.1. The Respondent failed to give consideration and decide with regard to Malgas’ applications for temporary incapacity leave within 30 days of receipt of the applications and the medical certificates provided him and consider Item 10(1) of Schedule 8 of the LRA;
20. The Respondent has therefore committed an unfair labour practice in relation to Malgas’ applications for temporary incapacity leave, which is part of the benefits which Malgas enjoys as an Educator.
21. The following have relevance:
21.1. NAPTOSA obo Roman AR v Department of Education Eastern Cape, under case number PSES734-18/19EC.;
21.2. Fudu G v Department of Education Eastern Cape, under case numbers PSES137-17/18EC and PSES77-17/18EC.
21.3. Nxarana N v Department of Health Eastern Cape, under case number PSCB354-15/16.
21.4. Maselwane SM v Department of Education and Sport Development North West, under case number PSES615-18/19 NW.
22. NAPTOSA and Fudu were both served before the ELRC and both related to the Department of Education’s obligations in terms of Resolution 7 of 2001 and PILIR. The Applicant in the NAPTOSA matter referred the dispute as an unfair labour practice relating to benefits, whilst the Applicant in the Fudu matter referred the dispute as an interpretation and application of collective agreement. In both matters the Arbitrator premised his findings on several Labour Court decisions, which equally apply in the matter in casu.
23. The Nxarana matter dealt with the application of PSCBC Resolution 7 of 2000 and PILIR. Whilst the matter in casu is based on the application of ELRC Resolution 7 of 2001 and PILIR, the same principles have been applied.
24. The Maselwane matter involves the same Respondent in casu and dealt with Department of Education’s obligations in terms of Resolution 7 of 2001 and PILIR. The Respondent has complied with the Award in that matter.
Jurisdiction
25. The matter involves the provisions of a collective agreement. The ELRC therefore derives its jurisdiction to arbitrate this dispute from Section 24 of the LRA;
26. The matter of NAIDOO vs Department of Education KwaZulu-Natal stated:
“The issue of the jurisdiction of Councils to arbitrate disputes referred under section 24 of the LRA has been finally settled after much uncertainty.
The following are important sections of the Liebenberg judgment that deserve mention verbatim: “It had been common cause that the department was obliged by the collective agreement to notify the employees of the fate of the applications for TIL within 30 days. There is no basis for the Commissioner’s ruling that the directive which imposed that obligation had not been included in the collective agreement." The Court, accordingly, ruled that the Council had jurisdiction to entertain the dispute under section 24 of the LRA, and remitted the matter to the Council to arbitrate on the merits.”
27. Even though the effect of the outcome of Malgas’ dispute is the payment of his remuneration, the dispute centers around the Respondent’s conduct, which amounts to an unfair labour practice in relation to a benefit which the Applicant derives from a collective agreement, specifically pertaining to paid incapacity leave.
RESPONDENT’S VERSION
28. Keetile submitted that:
28.1. Malgas last worked on 4 September 2019 and was dismissed on 11 September 2020. He made the application on the same day.
28.2. The grievance was not considered, as he was no longer an employee.
28.3. The Council lacked the jurisdiction to arbitrate the matter in its current form. The dispute involves the provisions of a collective agreement. It should have been referred as an interpretation and application of a collective agreement, PSCBC 7 of 2000 and ELRC 1 of 2001, and no(y) as an unfair labour practice.
28.4. The effect of a favorable award to Malgas would be the payment remuneration. The dispute centers around whether the Respondent’ s conduct constituted an unfair labour practice.
28.5. In Fudu, supra, the matter was correctly referred as an interpretation dispute.
28.6. Matters pertaining to incapacity leave should be referred to the CCMA as the PSCBC takes precedence over the ELRC. The PSCBC, under the auspices of the DPSA is responsible for management of incapacity leave, in terms of Item 6.1 of the PILIR. The DPSA provides advice on the interpretation and application of the PILIR.
28.7. There was no evidence that the Respondent complied with the award in Maselwane SM v Department of Education and Sport Development PSES615-18/19NW.
ANALYSIS OF EVIDENCE AND ARGUMENT:
Jurisdiction
29. It is common cause that the matter involves the provisions of a collective agreement. Consequently, the ELRC derives its jurisdiction to arbitrate from Section 24 of the LRA;
30. Malgas referred to NAIDOO, supra, where the Court ruled that the Council had jurisdiction to arbitrate a dispute where the 30-day provision was not complied with.
31. The Council, therefore, has the jurisdiction to arbitrate the matter.
Unfair labour practice
32. There is factual dispute as to when Malgas submitted the first application for temporary leave. On his version the first application was made on 11 November 2019. When his pay was stopped in May 2020. He lodged a grievance, and later, on 23 July 2020, a second application. On Keetile’ s version the application was made on 11 November 2020, a year later. Malgas’ version is more likely as he was diagnosed with palate cancer on 11 November 2019, the same day. Keetile submitted that Malgas had been dismissed on 11 September 2020. Malgas did not know he had been dismissed.
33. Clause 9 of ELRC Resolution 7 of 2001 , which governs temporary incapacity states:
“9.4 The Head of Department may grant a maximum of 30 consecutive working leave days with full pay during which period an investigation must be conducted into the nature and extent of the incapacity. The investigation shall be conducted in accordance with item 10(1) of Schedule 8 of the Labour Relations Act, 1995.”
I accept that Malgas made an application, and that the Respondent did not consider it. (30) (Thirty) consecutive working days were not granted, and no investigation took place.
34. In terms of Clause 9.4, of Resolution 7 of 2001, the Respondent may:
“Within 30 days after receipt of an application for temporary incapacity leave that has been certified by attending a medical practitioner grant 30 consecutive leave days, during which time they may conduct an investigation in accordance with Item 10(1) of Schedule 8 of the LRA”;
There is no evidence of this taking place.
35. The Respondent must, in terms of paragraph 7.3.5.1(e) of PILIR.:
“… within 30 working days after receipt of both the application form and medical certificate referred to in paragraphs 7.1.4 and 7.1.5.2, approve or refuse temporary incapacity leave granted conditionally, or where applicable the approval or refusal of additional temporary incapacity leave. …”
This did not happen.
36. Malgas submitted that the Respondent failed to comply with the specific procedural requirements in terms of PILIR paragraph 7.3.5.1(f) to approve or refuse (TIL) and notify the Employee within 5 days. This did not happen and Malgas lodged a grievance in terms of Clause 9.6 of Resolution 7 of 2001.
37. The crisp question is whether the Respondent’ s failure to grant or refuse the application constitutes unfair conduct as envisaged by Section 186(2)of the LRA.
38. In NAPTOSA, supra, the Council found that a failure of the Employer to comply with the 30-day provision constituted an unfair labour practice’.
39. In Nxarana, supra, the Council found that, in not applying the 30-day provision, the Respondent had not applied the Collective Agreement correctly.
40. In Maselwane, supra, the Council found that the Respondent had committed an unfair labour practice in failing to apply the Collective Agreement correctly in not complying with the 30-day provision. It awarded the period to be paid. Similarly, in Fudu, supra, where the award was based on several Labour Court judgements.
FINDING
41. For the reasons stated above I find that the Respondent has committed an unfair labour practice, as contemplated by Section 186(2)(a) of the LRA, by failing to take a decision in relation to the Applicant’s applications for temporary incapacity leave and in respect of the periods 11 November 2019 (the date of the first application) and 11 September 2020 (the date of dismissal), within the 30-day period as prescribed in the provisions of ELRC Resolution 7 of 2001, read with the PILIR Policy and Item 10(1) of Schedule 8 of the LRA.
42. Malgas was paid up until the end of March 2020 and was dismissed on 11 September 2020. His claim is limited to the period 1 April to 11 November 2020.
43. This is seven months and one week and amounts to R245833.03 ((R33997.35 x 7 months) + (R33997.35/4.33 weeks)).
AWARD
44. The Respondent’ s conduct constituted an unfair labour practice.
45. The Respondent is ordered to pay the Applicant the amount of R245833.03 (two hundred and forty-five thousand eight hundred and thirty-three Rand and three cents) by 30 June 2021
D H Smith
ELRC PANELIST
31 May 2021
Case No.: ELRC210-20/21NW Date of Award: 31 May 2021
In the ARBITRATION between:
MALGAS
(Union / Applicant)
and
DEPARTMENT OF EDUCATION LIMPOPO
(Respondent)
Union/Applicant’s representative: Ms Matshidiso Molema
Tel: 0182932822 Telefax: 0182932847, 0867182389
Email: annelize@scholtzattorneys.co.za
Respondent’s representative: Mr. M M Keetile
Tel: 0183884108
Email: martink@nwpg.gov.za
DETAILS OF HEARING AND REPRESENTATION:
1. The dispute was referred to the Education Labour Relations Council (“Council”) in terms of Section 186(2)(a) of the Labour Relations Act, No. 66 of 1995 (“LRA”). It was heard video conference on 26 March 2021.
2. The Applicant, Mr. Malgas (“Malgas”) was represented Ms Matshidiso Molema from Schöltz Attorneys. The Respondent was represented Mr. Martin Keetile (“Keetile”), its SES: Disputes.
3. The process was digitally recorded, and I took handwritten notes.
4. The parties agreed to submit written argument as follows:
24 November 2020 Applicant 1 April 2021. Received 6 April 2021
30 November 2020 Respondent 8 April 2021. Received 30 April 2021
3 December 2020 Applicant (if necessary) 12 April 2021
ISSUE TO BE DECIDED:
5. Whether the Respondent committed an unfair labour practice, with reference to the relevant provisions of ELRC Resolution 7 of 2001 and the Policy for Incapacity Leave and Ill-Health Retirement (herein after “PILIR”) pertaining to benefits, in particular a dispute involving the Respondent’s failure to consider and decide upon applications by the Applicant for temporary incapacity leave, within the 30-day period, as prescribed by the relevant provisions of the ELRC Resolution 7 of 2001 and PILIR.
6. If I find in the positive, I must decide upon an appropriate remedy.
BACKGROUND:
7. Malgas was employed as post level 1 educator. He was diagnosed with palate cancer on 11 November 2019. He earned R33997.35 per month.
8. The dispute pertains to the Respondent’s failure to consider and decide on Malgas’ applications for temporary incapacity leave; which resulted in him being placed on unpaid leave. The Applicant referred this dispute to the ELRC as a consequence thereof;
REMEDY
9. Malgas sought to paid temporary incapacity leave for the period from April 2020 to date, and that the Respondent be ordered to amend his leave records, in accordance with this award, and to effect payment within 7 days from the date of the issuing of the Arbitration Award.
SURVEY OF EVIDENCE AND ARGUMENT:
10. For purposes of this award, I do not intend, to record verbatim evidence led, submissions made and or arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented in rendering this award.
11. Most of the evidence was common cause.
APPLICANT’S VERSION
12. Malgas submitted that:
12.1. He was, at all material times, employed by the Respondent as an Educator (Post Level 1) at the Boschpoort Combined School, with Persal Nr 11700823;
12.2. He started suffering adverse symptoms during May 2019 and was subsequently diagnosed with palate cancer. He has since then been receiving chronic treatment, including chemotherapy and radiotherapy;
12.3. On or about 11 November 2019, he applied for temporary incapacity leave (long period) and submitted the application by hand to the Principal, Mr. Khumalo (“Khumalo”). He received his normal monthly remuneration up to the end of March 2020.
12.4. During May 2020, it was brought to his attention that the Circuit Manager responsible for his area had instructed that his salary be withheld. Malgas was then advised by the Circuit Manager to lodge a formal grievance, which he submitted to Khumalo at the beginning of June 2020. He made further enquiries thereafter as to the outcome of the grievance but was ultimately informed that his grievance was rejected. He was never provided with any formal confirmation as to the outcome of the said grievance;
12.5. On or about 23 July 2020, he submitted a further application for temporary incapacity leave (long period) by hand to Khumalo, which has never been accepted, nor rejected by the Respondent;
12.6. He has not received payment of his benefits and remuneration since April 2020.
Legal issues
13. The Respondent failed/refused to consider the applications for temporary incapacity leave within 30 days of the respective applications and therefore has committed an unfair labour practice;
14. The Respondent’s obligations are set out in Clause 9 of ELRC Resolution 7 of 2001 , which governs temporary incapacity leave in terms of:
“9.4 The Head of Department may grant a maximum of 30 consecutive working leave days with full pay during which period an investigation must be conducted into the nature and extent of the incapacity. The investigation shall be conducted in accordance with item 10(1) of Schedule 8 of the Labour Relations Act, 1995.”
15. The Resolution forms part of Malgas’ conditions of service as it constitutes a Collective Agreement and is therefore binding. It forms part of the Applicant’s conditions of service. In terms of Clause 9.4, of Resolution 7 of 2001, the Respondent may:
“Within 30 days after receipt of an application for temporary incapacity leave that has been certified by attending a medical practitioner grant 30 consecutive leave days, during which time they may conduct an investigation in accordance with Item 10(1) of Schedule 8 of the LRA”;
16. The obligation on the Respondent is emphasized in paragraph 7.3.5.1(e) of PILIR:
“The Employee must within 30 working days after receipt of both the application form and medical certificate referred to in paragraphs 7.1.4 and 7.1.5.2, approve or refuse temporary incapacity leave granted conditionally, or where applicable the approval or refusal of additional temporary incapacity leave. In making a decision, the Employer must apply his / her mind to the medical certificate (with or without describing the nature and extent of the incapacity) contemplated in paragraph 7.1.5.2, medical information / records contemplated in paragraph 7.1.5.4 (if the employee consented to disclosure), the Health Risk Manager’s advice, the additional information supplied by the employee in paragraph 7.1.5.3 (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 instruct the employee to return to work while the secondary assessment is undertaken. Such instruction should, however, be considered and applied with circumspect. However, should the employee fail to adhere to such an instruction s/he expose him / herself to possible disciplinary action.”
17. The Respondent failed to comply with the specific procedural requirements in terms of PILIR which prescribe the following in particular paragraph 7.3.5.1(f):
“(f) If the Employer –
(i) approves the temporary incapacity leave grated conditionally, such leave must be converted into temporary incapacity leave; or
(ii) refuses the temporary incapacity leave granted conditionally, s/he must notify the employee in writing –
A. of the refusal;
B. of the reason for the refusal;
C. that if s/he is not satisfied with the Employer’s decision, that s/he may lodge a grievance as contemplated in par.10; and
D. that s/he must notify the Employer in writing within 5 working days of the date of the notice to him/her, whether or not the period of conditional incapacity leave must be covered by annual leave (to the extent of the available annual leave credits) or unpaid leave and that, if s/he fails to notify the Employer of his/her choice, the period will be covered by unpaid leave.”
18. In terms of Clause 9, in particular Clause 9.6, of Resolution 7 of 2001, the Applicant has the right to access the grievance procedure and the relevant dispute resolution procedures:
“9.6 if the educator is of the view that she or he has been unfairly treated as regards the granting of additional sick leave, she/he has the right to follow the grievance procedure and the relevant dispute resolution procedure in order to settle the matter”.
19. Malgas is entitled to paid temporary incapacity leave in respect of the period as listed in paragraphs 6.3 herein below, premised thereon that:
19.1. The Respondent failed to give consideration and decide with regard to Malgas’ applications for temporary incapacity leave within 30 days of receipt of the applications and the medical certificates provided him and consider Item 10(1) of Schedule 8 of the LRA;
20. The Respondent has therefore committed an unfair labour practice in relation to Malgas’ applications for temporary incapacity leave, which is part of the benefits which Malgas enjoys as an Educator.
21. The following have relevance:
21.1. NAPTOSA obo Roman AR v Department of Education Eastern Cape, under case number PSES734-18/19EC.;
21.2. Fudu G v Department of Education Eastern Cape, under case numbers PSES137-17/18EC and PSES77-17/18EC.
21.3. Nxarana N v Department of Health Eastern Cape, under case number PSCB354-15/16.
21.4. Maselwane SM v Department of Education and Sport Development North West, under case number PSES615-18/19 NW.
22. NAPTOSA and Fudu were both served before the ELRC and both related to the Department of Education’s obligations in terms of Resolution 7 of 2001 and PILIR. The Applicant in the NAPTOSA matter referred the dispute as an unfair labour practice relating to benefits, whilst the Applicant in the Fudu matter referred the dispute as an interpretation and application of collective agreement. In both matters the Arbitrator premised his findings on several Labour Court decisions, which equally apply in the matter in casu.
23. The Nxarana matter dealt with the application of PSCBC Resolution 7 of 2000 and PILIR. Whilst the matter in casu is based on the application of ELRC Resolution 7 of 2001 and PILIR, the same principles have been applied.
24. The Maselwane matter involves the same Respondent in casu and dealt with Department of Education’s obligations in terms of Resolution 7 of 2001 and PILIR. The Respondent has complied with the Award in that matter.
Jurisdiction
25. The matter involves the provisions of a collective agreement. The ELRC therefore derives its jurisdiction to arbitrate this dispute from Section 24 of the LRA;
26. The matter of NAIDOO vs Department of Education KwaZulu-Natal stated:
“The issue of the jurisdiction of Councils to arbitrate disputes referred under section 24 of the LRA has been finally settled after much uncertainty.
The following are important sections of the Liebenberg judgment that deserve mention verbatim: “It had been common cause that the department was obliged by the collective agreement to notify the employees of the fate of the applications for TIL within 30 days. There is no basis for the Commissioner’s ruling that the directive which imposed that obligation had not been included in the collective agreement." The Court, accordingly, ruled that the Council had jurisdiction to entertain the dispute under section 24 of the LRA, and remitted the matter to the Council to arbitrate on the merits.”
27. Even though the effect of the outcome of Malgas’ dispute is the payment of his remuneration, the dispute centers around the Respondent’s conduct, which amounts to an unfair labour practice in relation to a benefit which the Applicant derives from a collective agreement, specifically pertaining to paid incapacity leave.
RESPONDENT’S VERSION
28. Keetile submitted that:
28.1. Malgas last worked on 4 September 2019 and was dismissed on 11 September 2020. He made the application on the same day.
28.2. The grievance was not considered, as he was no longer an employee.
28.3. The Council lacked the jurisdiction to arbitrate the matter in its current form. The dispute involves the provisions of a collective agreement. It should have been referred as an interpretation and application of a collective agreement, PSCBC 7 of 2000 and ELRC 1 of 2001, and no(y) as an unfair labour practice.
28.4. The effect of a favorable award to Malgas would be the payment remuneration. The dispute centers around whether the Respondent’ s conduct constituted an unfair labour practice.
28.5. In Fudu, supra, the matter was correctly referred as an interpretation dispute.
28.6. Matters pertaining to incapacity leave should be referred to the CCMA as the PSCBC takes precedence over the ELRC. The PSCBC, under the auspices of the DPSA is responsible for management of incapacity leave, in terms of Item 6.1 of the PILIR. The DPSA provides advice on the interpretation and application of the PILIR.
28.7. There was no evidence that the Respondent complied with the award in Maselwane SM v Department of Education and Sport Development PSES615-18/19NW.
ANALYSIS OF EVIDENCE AND ARGUMENT:
Jurisdiction
29. It is common cause that the matter involves the provisions of a collective agreement. Consequently, the ELRC derives its jurisdiction to arbitrate from Section 24 of the LRA;
30. Malgas referred to NAIDOO, supra, where the Court ruled that the Council had jurisdiction to arbitrate a dispute where the 30-day provision was not complied with.
31. The Council, therefore, has the jurisdiction to arbitrate the matter.
Unfair labour practice
32. There is factual dispute as to when Malgas submitted the first application for temporary leave. On his version the first application was made on 11 November 2019. When his pay was stopped in May 2020. He lodged a grievance, and later, on 23 July 2020, a second application. On Keetile’ s version the application was made on 11 November 2020, a year later. Malgas’ version is more likely as he was diagnosed with palate cancer on 11 November 2019, the same day. Keetile submitted that Malgas had been dismissed on 11 September 2020. Malgas did not know he had been dismissed.
33. Clause 9 of ELRC Resolution 7 of 2001 , which governs temporary incapacity states:
“9.4 The Head of Department may grant a maximum of 30 consecutive working leave days with full pay during which period an investigation must be conducted into the nature and extent of the incapacity. The investigation shall be conducted in accordance with item 10(1) of Schedule 8 of the Labour Relations Act, 1995.”
I accept that Malgas made an application, and that the Respondent did not consider it. (30) (Thirty) consecutive working days were not granted, and no investigation took place.
34. In terms of Clause 9.4, of Resolution 7 of 2001, the Respondent may:
“Within 30 days after receipt of an application for temporary incapacity leave that has been certified by attending a medical practitioner grant 30 consecutive leave days, during which time they may conduct an investigation in accordance with Item 10(1) of Schedule 8 of the LRA”;
There is no evidence of this taking place.
35. The Respondent must, in terms of paragraph 7.3.5.1(e) of PILIR.:
“… within 30 working days after receipt of both the application form and medical certificate referred to in paragraphs 7.1.4 and 7.1.5.2, approve or refuse temporary incapacity leave granted conditionally, or where applicable the approval or refusal of additional temporary incapacity leave. …”
This did not happen.
36. Malgas submitted that the Respondent failed to comply with the specific procedural requirements in terms of PILIR paragraph 7.3.5.1(f) to approve or refuse (TIL) and notify the Employee within 5 days. This did not happen and Malgas lodged a grievance in terms of Clause 9.6 of Resolution 7 of 2001.
37. The crisp question is whether the Respondent’ s failure to grant or refuse the application constitutes unfair conduct as envisaged by Section 186(2)of the LRA.
38. In NAPTOSA, supra, the Council found that a failure of the Employer to comply with the 30-day provision constituted an unfair labour practice’.
39. In Nxarana, supra, the Council found that, in not applying the 30-day provision, the Respondent had not applied the Collective Agreement correctly.
40. In Maselwane, supra, the Council found that the Respondent had committed an unfair labour practice in failing to apply the Collective Agreement correctly in not complying with the 30-day provision. It awarded the period to be paid. Similarly, in Fudu, supra, where the award was based on several Labour Court judgements.
FINDING
41. For the reasons stated above I find that the Respondent has committed an unfair labour practice, as contemplated by Section 186(2)(a) of the LRA, by failing to take a decision in relation to the Applicant’s applications for temporary incapacity leave and in respect of the periods 11 November 2019 (the date of the first application) and 11 September 2020 (the date of dismissal), within the 30-day period as prescribed in the provisions of ELRC Resolution 7 of 2001, read with the PILIR Policy and Item 10(1) of Schedule 8 of the LRA.
42. Malgas was paid up until the end of March 2020 and was dismissed on 11 September 2020. His claim is limited to the period 1 April to 11 November 2020.
43. This is seven months and one week and amounts to R245833.03 ((R33997.35 x 7 months) + (R33997.35/4.33 weeks)).
AWARD
44. The Respondent’ s conduct constituted an unfair labour practice.
45. The Respondent is ordered to pay the Applicant the amount of R245833.03 (two hundred and forty-five thousand eight hundred and thirty-three Rand and three cents) by 30 June 2021
D H Smith
ELRC PANELIST
31 May 2021
Text
Text