Case Number: ELRC738-20/21FS
Commissioner: Lusanda Myoli
Date of Award: 09 June 2021
In the ARBITRATION between
SADTU obo Khunyeli, Priscila Mathabo
Education Department of Free State
Applicant’s representative: Mr Bells Mbhele
Applicant’s address: 780B Koahela Street
Telephone: 0822275152, 0822275152
E-mail: firstname.lastname@example.org email@example.com
Respondent’s representative: Mr Vuyisile Gubuza
Respondent’s address: Thabo Mofutsanyana District
Telephone: 0587130415, 0798984433
E-mail: SS.Moloi@fseducation.gov.za V.Gubuza@fseducation.gov
DETAILS OF THE HEARING AND REPRESENTATION
 This is the award in the arbitration between the Applicant, Ms Khunyeli, Priscila Mathabo (the Applicant), and the Department of Education Free State (the Respondent).
 The arbitration was held online, on 17 May 2021, under the auspices of the Education Labour Relations Council (ELRC) in terms of section 186(2)(a) of the Labour Relations Act, 1995 as amended (“LRA”) and this award is issued in terms of section 138 (7) of the LRA.
 The Applicant was present and represented by Mr Bells Mbhele (Mr Mbhele), a SADTU union official. The Respondent was represented by Mr Vuyisile Gubuza (Mr Gubuza), its dispute management deputy director.
 The proceedings were digitally recorded.
ISSUE TO BE DECIDED
 I am required to determine whether the Applicant is entitled to the payment of the R116 648.39 unpaid temporary incapacity leave that was deducted from her from November 2012 up to 20 April 2021, as a benefit.
 In determining the abovementioned paragraphs, I must establish if the Respondent committed unfair labour practice within the context of s186(2)(a) (provision of benefits to the employee) of the LRA. If I find it has, I must determine the appropriate relief otherwise the referral will be dismissed.
BACKGROUND TO THE DISPUTE
 This is a dispute brought in terms of section 186(2)(a) of the LRA – unfair labour practice relating to the provision of benefits to the employee, referred by the Applicant to the ELRC for arbitration. The matter was set down for arbitration on 17 May 2021.
 It is common cause that the Applicant is employed by the Respondent as an educator, she was employed in February 1994 at Dynasty Farm Primary School in Vrede and currently earns R28 041,50 pm.
 The dispute relates to the Respondent deducting repayments for unapproved temporary incapacity leave from the Applicant’s salary for about 269 unappproved leave days over the period 2004/07/2021 to 2011/03/2025, R1.
 The Applicant’s case is that the salary deductions amount to unfair labour practice in terms of s186(2)(a) of the LRA. The deductions were unlawful in terms of section 34 of the BCEA, because the Applicant was not informed before the deductions were effected. The Respondent was supposed to approve or decline the temporary incapacity leave applications granted provisionally within 30 days, as per clause 7.2.9 of PILLIR document which governs leave application and approvals and assessment of temporary incapacity leave in the department of education. There was no confirmation in that regard and as a result an amount of R116 648.39 was deducted from the Applicant’s salary from November 2012 up to 20 April 2021. Therefore, the Applicant is seeking payment of the deducted amount.
 Respondent’s case is that the dispute does not constitute unfair labour practice related to benefits as the Applicant also mentions PILLIR and BCEA section 34 as the basis for the referral. However, the Respondent has not committed any unfair labour practice under section 186(2)(a). The Applicant applied for temporary incapacity leave during the period 2004/07/2021 to 2011/03/2025, part of it was granted and other days declined, R1. In terms of Collective Agreement 1 of 2007 the Applicant’s declined leave was supposed to be either deducted from annual leave or made unpaid leave if there were no annual leave days. In this case the unapproved leave days (269) were beyond the Applicant’s accrued leave days. The educators submit the applications for leave to the principals who then make recommendations to the HOD of the department. Therefore, communication regarding leave from the department would be to the educator via the principal.
 In January 2012, the Respondent sent communication to the school principal of the Applicant at Justice Lefuma Primary School in Phutaditjhaba, at the time, R3, advising that the Applicant’s leave for specified period was not granted and there was also specific correspondence, not captured, to the Applicant directly regarding her enquiry around 2012 about the unpaid leave deductions. R4/5 persal report shows that the department of education human resources departments’ records indicated the Applicant’s unpaid leave deductions summary. The Applicant’s deductions started on 2012/11/12 and the persal runs deductions for leave without pay for one year and they had to do reruns annually since. In 2019, to avoid inconvenience on the Applicant and the Respondent it was decided to convert the balance into a debt to be deducted continually until the amount is fully paid.
 In line with PILLIR, the HOD grants 30 days provisional leave pending investigation on whether the nature of the sickness warrants that employee cannot go to work. The application is sent to the health professionals for assessment for approval. The Applicant’s application went through same process and the health inspectors requested further information. The Applicant was advised to submit further information to determine whether sickness warranted the leave and she never submitted and therefore the application was declined and for every leave that was declined communication was sent to the Applicant.
 The preceding six paragraphs narrowed the dispute.
SURVEY OF THE EVIDENCE AND ARGUMENT
Mr Mbhele on behalf of the Applicant discovered a bundle of documents numbered A1-8. He called the Applicant as the sole witness for. Mr Gubuza on behalf of the Respondent discovered for the record a bundle of documents numbered R1-7. He was the sole witness for the Respondent’s case.
The evidence considered relevant is summarised hereunder.
Ms Khunyeli, Priscila Mathabo
 The Applicant took an oath and testified that she does not know which leave was approved or not since 2009. She joined Justice Lefuma Primary School in January 2008 to January 2012 and moved to Tshiya Resource Centre in 2012 January. Thereafter she had no communication with the principal because they were not in good terms because she was the cause of her being bipolar and being at home and ending up being epileptic, she also had a heart failure. She would not even give her the payslip and she reported it. The principal was a difficult character and she disadvantaged her with the leaves and went to the extent of phoning her psychiatrist.
 After consulting with the assistant director in Bloemfontein, Ms Laurenco, who dealt with leave nothing happened. She never got an explanation from the district office regarding her leave. The manner in which the deductions were is tricky for someone who does not know because they reflect as new deduction so she did not know who was deducting. She thought someone was deducting money from her account via the department. If it was clear enough for her she would have maybe made an effort immediately. But she went to the district office and nothing happened and she knows a number of officials who work with leaves there and they know her, even the late Mr Majoro from Bloemfontein knew her regarding her leave queries- and never said anything.
 She does not know when the deductions started because she was sick by then. She remembers the deduction of R3 545.00 but her memory fails her she doesn’t know when it was. It was put to her that was on 31 January 2019 and she did not dispute it and said since she has been epileptic, bi-polar and had a heart attack she does not remember anything.
 She never spoke to her school principal about the deductions before approaching SADTU because she was not in good terms with her since she was not even giving her payslips. She doesn’t know if the deductions started in 2012 because her mind was not in a good state because of epilepsy, heart failure and bipolar. She knows she went to the district office to report and they never helped her but she does not remember when it was. She was referred by Mr Buciko to Ms Laurenco in Bloemfontein and he said the matter was to be addressed by the provincial office.
 It was put to her that she would have been told at the district office by Mr Buciko, that the deductions were for leave without pay, as per R4 persal reports, and would have been supplied with correspondence copies if she said she did not receive it. She said yes they asked about the correspondence but she was not given copies. She denied she ever got correspondence regarding her leave deduction since 2012.
 It was put to her that her problem is that she never accepted that her leave was not approved since 2012. She confirmed that in 2016 her union communicated with the labour relations director on her behalf and she never got any feedback. She denied having been informed by the finance section in the department of education around End 2018 early 2019 that they were going to deduct R124 000 of R3 545 per month until the debt was paid up.
 Since the deductions started in 2012 until April 2021 as per the last deduction no one informed her about the deductions from her salary.
 No re-examination.
Mr Vuyisile Gubuza
 He took an oath and testified that the Applicant between 2009/03/11 and 2011/03/25 applied for several temporary incapacity leaves, R1, to a total of about 300 leave days. Of those, 269 days were declined, R1. In terms of PILLIR if temporary incapacity leave is declined the Applicant could have lodged a dispute. She did not lodge a dispute stating that the specialist she consulted had passed on. The objection would have afforded her an opportunity to substantiate on submissions declined. In the absence of objection the employer had option to use accrued leave and once it was exhausted apply leave without pay, after advising the applicant to select an option. But once accrued leave was exhausted the unpaid leave had to be applied, as per R4. The declined leave deduction was communicated to the Applicant and the principal as per the correspondence to the school principal. As the applicant also testified that she went to the district office, as per R4,5 reports the leave pay would have reflected there.
 Had the Applicant enquired from the district office she would have been told that the deduction was for leave without pay.
 As per the Applicant’s testimony, her union consulted the labour relations director in 2016. They were told about the deductions being for unpaid leave. It is improbable that the Applicant was not told about the deductions since 2012 and that she only hears it today that deductions were for unapproved leave. The deductions have been running since 2012 on a year to year basis until the employer decided to implement the balance in 2019 as a new debt deduction that is recurring until paid up. R6 shows that the deduction were to be effected from January 2019 on the balance of R124 097.39 and her current balance is R21 273.83. The deductions have been running since January 2019 so the Applicant in her evidence in chief was very economical with the truth.
 The letter dated 18/06/2013/ 20/05/2013 in Applicant’s bundle, on the part about (it was the Applicant’s word against the officials’ |regarding whether there was correspondence advising the Applicant that her leave was declined)- The letter also states that the leave was declined and he has produced the letter that was sent to the Applicant and can organise copies of the direct correspondence that was sent to the Applicant time allowing.
 The email of 7 July 2015 from Ms Lourence to Mr Van der Walt, in Applicant’s bundle, was meant for gathering information to assist the human resources to respond to the union’s query regarding the unpaid leave deductions.
 He does not have the principal debt from 2012 which would reflect on persal but he has the amount of the new debt from 1 January 2019 which is R124 097.39.
 Leave without pay dates are summarised and summary of unpaid leave days and deductions/ periods are stated on pages 3 to 4 of the Applicant’s bundle. The 269 leave days declined are stated and accounted for on R1. The amounts were calculated as lump sums to be deducted annually until they had to workout the repayments on the balance as a new debt recurring in 2019 until completed.
 The Applicant was informed in writing regarding the deductions to the contact details supplied to the employer.
 He would provide a letter directly sent to the Applicant about the deduction and the persal report of the principal debt which is system generated by Wednesday. He had only run a report from 2019 and not from 2012.
 The correspondence referred to by the Applicant’s representative making reference to letters that were sent to the Applicant is internal intra departmental correspondence and does not mean the letters do not exist.
Summary of the Respondent and Applicant’s closing arguments:
 On behalf of the Applicant, it was argued that based on two policies of the Department of Education, section 34(1) of the Basic Conditions of Employment Act; and PILLIR the policy requires the employer to inform the employee before effecting deductions.
 The Applicant was not informed regarding the deductions she did not receive communication regarding declined leave. Before 2005 the Applicant had 22 days leave salary refund of amount deducted without consent.
 On behalf of the Respondent it was argued that the Applicant referred an unfair labour practice dispute related to benefits and salaries do not constitute benefits. The details of the case are about unlawful deductions. The Applicant could not remember anything during her evidence in chief except that she was not told about leave declined and deductions. The Respondent has shown they implemented the rule of no work no pay, by R2,3 letter to the principal that indicated that leave was declined. The unpaid leave amount based on fairness was not deducted all at once due to the high amount but instead was spread over time since 2012 up to now.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
 The Applicant had to demonstrate through evidence and argument that she was entitled to the benefits she is claiming in terms of section 186(2)(a) of the LRA. In other words, the Applicant had to show that her complaint is justiciable under what constitutes a benefit as contemplated by the unfair labour practice jurisdiction of the LRA.
 It was common cause that the dispute relates to the Respondent deducting repayments for unapproved temporary incapacity leave from the Applicant’s salary for about 269 unappproved leave days over the period 2004/07/2021 to 2011/03/2025 - R1 bundle of documents.
 The concept of benefit is not defined in the LRA. Apollo Tyres , is the standard bearer of what to look out for when deciphering meaning of “benefit” under the LRA, the Court held that:
‘In my view, the better approach would be to interpret the term “benefit” to include a right or entitlement to which the employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer’s discretion. In my judgment “benefit” in s 186(2)(a) of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer’s discretion.’
 Per Apollo, a benefit is something extra to remuneration granted at the employer’s discretion. Leave is a statutory entitlement that exists independent and separate as advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer’s discretion
 The Applicant’s representative in his own submissions indicated that the unlawful deduction was in terms of section 34 of the BCEA and in terms of PILLIR which governs leave in the department. Based on the Applicant’s arguments and evidence led regarding the claim, alleged unlawful deductions and some unsubstantiated leave pay claim mentioned only in closing arguments, I am of the view that the Applicant has not shown that this complaint is justiciable under what constitutes a benefit as contemplated by the unfair labour practice jurisdiction of the LRA.
 The evidence and arguments of both parties mainly pertained to the deductions in dispute. The Applicant’s case is that there was no communication before the deductions were effected for the declined leave, as per paragraph 40 above. The Respondent on the other hand led evidence to show there was communication to the Applicant’s principal regarding the declined leave and subsequent deductions, R3, and further correspondence directly to the Applicant which it could not produce.
 Since the Applicant has not shown that the act complained of is one that falls within the unfair labour practice definition there is no point to even consider the second leg of the test on the evidentiary burden to prove the employer’s conduct was unfair, (see Department of Justice v CCMA & others  BLLR 297 (LAC) 321 quoted with approval in Reviews in the Labour Courts (2016) p378).
 Based on the above, I find that the Applicant has not shown that her entitlement to the payment of the R116 648.39 unpaid temporary incapacity leave payment that was deducted from her salary from November 2012 up to 20 April 2021, constitutes a benefit in terms of s186(2)(a) of the LRA .
 In these circumstances I furthermore do not find that leave claims are justiciable under s186(2)(a) (provision of benefits to the employee) of the LRA.
 Therefore, I make the following award.
 The dispute’s referral for the payment of the R116 648.39 unpaid temporary incapacity leave that was deducted from the Applicant from November 2012 up to 20 April 2021 is not justiciable as a benefit in terms s186 (2) (a) (provision of benefits to the employee) of the LRA.
 The application is dismissed.
Thus done and signed in Johannesburg, on 09 June 2021.