ELRC323-21/22WC

Commissioner: Gail McEwan
Case No.: ELRC323-21/22WC
Date of Award: 02 November 2021

In the ARBITRATION between:

ROSEY MALAMANE
(Employee)

and

THE DEPARTMENT OF EDUCATION WESTERN CAPE
(Employer)

Union/Employee’s representative: Rosey Malamane
Union/Employee’s address:

Telephone: 079 497 6289
Email: roseymalamane1@gmail.com


Employer’s representative: Maurice Muller
Employer’s address:

Telephone: 0614631697
Email: Maurice.Muller@westerncape.gov.za


PARTICULARS OF PROCEEDINGS AND REPRESENTATION

(1) The arbitration hearing was held on 12 October 2021 and heard virtually with the consent of the parties. Present was the employee. The department of Education (THE DEPARTMENT) (employer) was represented by Maurice Muller (labour relations officer). The Certificate of Outcome declaring the matter unresolved at conciliation is on file and is dated 3 September 2021. These proceedings were digitally recorded. A Xhosa interpreter was present and the employer handed in a bundle of documents. Condonation for the late referral was granted in a Ruling dated 16 August 2021.

THE ISSUE IN DISPUTE

(2) I am required to determine on a balance of probabilities whether the applicant was dismissed and if this found whether her dismissal was fair on both substantive and procedural grounds.

(3) I have considered all the evidence and argument, but because the LRA requires brief reasons (section 138(7)), I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.

THE BACKGROUND TO THE DISPUTE

(4) The applicant started working for the employer on 1 February 2008; worked as an educator level 1; earned R16 400.00 per month and claims she was dismissed on 5 May 2016. The employee is seeking retrospective re-instatement in order for the employer to follow the correct procedure as outlined in section 12 (1) (a) of the Employment of Educators Act no. 76 of 1998. The dismissal is disputed by the employer who held that the employee had been placed on retirement due to ill health.

(5) We spent some time narrowing the issues in dispute. The employee saw on her papers from the time after she had left the employer that it is indicated she had been ‘discharged’ (meaning for Employee that she had been dismissed) and wanted the employer to correct that mistake. The employee believed that she should have been receiving a monthly pension as this was the option she had chosen but instead had received a lump sum from the Government Employees Pension Fund (GEPF). The calculation type used by the GEPF is for dismissal and not a retirement. The basic salary used for the calculations was a notch down from the actual salary earned by the employee at the time of her dismissal. The employee received a lump sum payment of R310 033.58. She was retired during a period when she had been off on sick leave. She wants the employer and GEPF to recalculate her retirement funds.

(6) On her referral form the employee had wanted the outcome of arbitration to be that she be re-instated so that a proper procedure could be followed; the investment account of the pension to be re-instated; medical aid to be re-instated; disability claim to be considered if the employer feels that she is not in a good state of health for work.

SUMMARY OF EVIDENCE AND ARGUMENT

The employee’s version and testimony was as follows:-

(7) Rosey Employee testified that the employer had never followed the correct procedure. She stated that she was unaware of any ivestigations taking place and she had been working. She insisted that no procedure was followed and if there was she had not been involved. Employee explained that she had never been a danger to the children and had done the best that she could. Employee explained that she had lost her job without any valid reasons. Employee said that she had never displayed any signs of schizophrenia and she had just been unlucky. Employee had been shocked when she received the letter confirming her retirement due to ill health. Employee believed that she should have been granted a disability benefit. The money paid out to her by GEPF had been based on the incorrect salary. Now Employee had no income and the departments not qualify for any State Grant. The employer failed to buy back pension from GEPF so that her service was brought up to ten years so that Employee would have been receiving a monthly pension. Employee claimed that she had never been asked to leave her job.

(7) In cross-examination it was put to Employee that she had applied for the retirement due to ill health as evidenced by the application forms completed and her signature being on bundle pages 32 and 80. Employee explained that at the time she had been very sick and did not recall everything. It was explained to Employee that the employer had followed a lengthy and proper procedure. Employee denied that any procedure had been followed. It was put to Employee that she had been part of the process followed as for instance when she submitted her medical certificates to the employer. It was explained to Employee that in order to have an appllication for retirement due to ill health approved the employer needed detailed medical reports from the doctors who were treating Employee. It was explained to Employee that due to the serious health issues experienced by her (which had been supported by medical reports from more than one doctor) it was found that Employee was permanently unfit to again be appointed in any teaching capacity. It was explained to Employee that in the event that she now feels she is fit she would need medical reports to confirm her medical fitness to resume work. It was confirmed to Employee that medical unfitness may be reversed. Employee said that because the employer failed to follow any process we are here at arbitration. Employee said that the employer never sought alternative positions which she could have held. It was explained to Employee that once the medical reports had been received from her treating doctors, an outside risk manager had been appointed to assess her case. The department officials are not medical practitioners and therefore the medical reports as supplied by Employee and her doctors had been used to assess her application for retirement due to ill health. It was put to Employee that at all material times the correct procedure had been followed for a retirement due to ill health. Employee agreed that she had applied for retirement due to ill health.

(8) In re-examination Employee said she had only submitted the long leave inapacity forms. The employer had never asked her about a retirement due to ill health.

(9) In answer to questions in clarification from me Employee confirmed that she had never continued seeing Dr Cozzie her psychiatrist as she had no money. Employee now goes to the clinic about every three months. I asked Employee whether she had brought any medial certificates confirming her fitness to return to work given that she was seeking retrospective reinstatement. Employee confirmed that she had not brought any medical certificates whatsoever.

The employer’s version and testimony was as follows:

(10) Maurice Muller testified that he was not employed at the department at the time when Employee went on retirement due to ill health and would be relying on the records as to what transpired. The records confirm that Employee applied for retirement for ill health on 2 February 2015 and the application was signed by Employee the same day (bundle pages 20 to 60). There are parts of the application that were filled in by her consulting Psychiatrist and other medical staff and the application was fully completed by everyone who needed to give input by 1 April 2016. A total of five medical reports were received from Dr. Cossie (Psychiatrist), had been studied and had formed part of the investigation led. Also as part of the investigation her sick leave records were recorded and in the period 2013 to 2015 when Employee had exhausted her thirty six day entitlement to sick leave by the eleventh month of her leave cycle. An independent specialized party was appointed to give guidance on the medical condition of Employee whose ill health fell within the disease category of ‘mental and behavioural disorders’ given that at the time Employee was diagnosed with Schizophrenia. The independent party recommended that Employee be given 195 days incapacity leave which was then approved by the department. As part of the process, specifically the collation of the medical reports and those from the independent third party, Employee signed an indemnity on 2 June 2016 in which she indemnified the department and health Risk Manager against any claim of whatsoever nature, which may be made against them as a result of or arising from the furnishing of any information. On 26 May 2015 Employee completed a declaration in which she stated that she was unable to mix freely with groups and people in general. Pursuant to her retirement Employee completed the requisite bank details form on 27 May 2016.

(11) On 2 May 2015 (bundle page 56) the department approved an extended incapacity leave for 195 days. The department noted that Employee had been diagnosed with a serious mental and behavioural disorder with persistent symptoms despite optimal treatment. Employee was diagnosed with schizophrenia in 2012 and had since received ongoing management including several hospital admissions. Employee currently suffers severe symptoms of delusions, hallucinations, severe cognitive decline and social withdrawal as a result of her illness. It was noted that Employee is treatment resistant and will likely remain with residual psychotic features. According to the treating Psychiatrist she is unfit for the open labour market due to the severity of her medical condition. It was also noted that Employee had been diagnosed with cancer and was undergoing chemotherapy. Taking all the aforementioned into consideration, the HRM (Human Resources Management) recommended approval of the period of incapacity leave as well as the ill health retirement. Employee submitted a second application for retirement due to ill health and that application is on ER bundle pages 114 to 118. Muller confirmed that the correct process was properly followed. On ER bundle page 117 it is seen that Employee completed the E54 form which is the Teachers Benefits on Retirement Form. All teachers retiring on pension must complete this form in triplicate and forward same to the department. In point (5) Employee had written that her type of retirement was due to ill health and that the commencement date would be 1 June 2016. The retirement due to ill health of Employee was approved by the Director. The retirement due to ill health was confirmed to Employee in a letter dated 5 May 2016. It is important to note the following extracts from the retirement due to ill health letter to Employee: (a) The retirement was done in accordance with section 11 (1) (a) of the Employment of Educators Act; (b) Employee was deeply thanked for the service she had given the the department over the period of her employment; (c) An annexure was attached regarding her retirement benefits; (d) Employee was again thanked for her outstanding contribution to Education and the letter ends with a paragrah that states – “Please be advised that you have been declared permanently unfit and as such cannot / may not be permanently appointed again in any teaching capacity’. Muller pointed out that there is nothing in a very comprehensive record that during this very long and thorough process Employee had ever raised any objections and at all times had been involved as she had initiated the process. Subsequent to this letter confirming her retirement due to ill health Employee completed the bank forms and her pension withdrawal form.

(12) In cross-examination it was put to Muller that there could not have been an investigation into her health status given that she had provided all the requisite medical certificates. Muller pointed out that her psychiatrist had provided at least three detailed medical reports which had been sent directly to the department and were shown to the independent assessor during the investigation stage. In response to the claim that Employee had not been involved in the process Muller pointed out that Employee had initiated the process and then followed up by completing all the accompanying forms needed. Muller agreed that Employee initiated the process although from the records Employee had never asked to be placed in another position. Muller agreed that Employee had submitted temporary incapacty forms. Muller confirmed that the leave records of Employee are on bundle page 60. Muller also pointed out that there was never any objections to the process from Employee at the time it was proceeding through the process of retirement due to ill health. Muller confirmed that her disability was not mentioned in the letter confirming her retirement due to ill health. Muller confirmed that Employee had requested in a form that she withdraws her money from the GEPF. Muller held that depite Employee being very ill at the time she had managed to complete all the requisite forms. There was nothing to add in re-examination.

(13) Martin Filander (Assistant Director: Peoples Benefits) testified that the document on bundle page 123 was a Benefit Calculation Quote for Employee for a specific time period. The calculations relate to the exit date of Employee being 1 June 2016. The quote is taken off the web page of the GEPF and the user is able to make some choices as to what they need calculated. The department is an administrator in terms of the GEPF over which the department do not have control. Employee was free to approach the GEPF to re-calculate her benefits. Their offices are located in Thibault Square in Cape Town. Filander reminded us that the figures on this page (bundle page 123) are an estimate based on the choices selected by Employee to obtain this estimate. In terms of the rules of the GEPF a monthly pension shall only be paid out to employees who have more then ten years’ service. Employee at the time of her retirement only had 8.413 year’s service and hence was not eligible for a monthly pension. As Employee was retiring due to ill health she had been given an additional five years which resulted in an increase in the amount paid out to Employee. Filander confirmed that the money paid to Employee had been calculated as an “ill health” retirement. Employee at the time was under the retirement age and becaue it was a retirement due to ill health no penalties had been applied to Employee.

(14) In cross-examination it was put to Filander that her salary had decreased a notch when the calculations were done on her pension refund and that it was decreased from R197 049.00 to R178 300.00 per annum. Filander explained that the formula used is based on average earnings over the last two years. Salaries usually change in April or July each year or both. Filander explained that there could be as many as four different salary adjustments in the prior two years. Referring to bundle page 113 Filander explained that this was the notification of withdrawal from the GEPF. In point 10 in the first four rows are the actual salaries earned by Employee during the period 1 April 2014 to 31 May 2016. This is how the GEPF arrived at an average salary of R178 300.00. Filander confirmed that the quote as seen on bundle page 123 was an estimation given at the request of Employee. Filander explained that members of the GEPF are sent a statement of their contibutions annually. Employee denied that she had ever received any statements from the GEPF. Employee confirmed that she had not changed her home address. Filander referred Employee to bundle page 123 where Employee confirmed that the addess as stated is correct. Filander explained that Employee shoud have received her annual statements from the GEPF and she could take that up with GEPF directly. Filander referred Employee to bundle page 125 where it is confirmed that ten benefit statements from the GEPF had been sent to Employee at the correct address during her membership of the GEPF. Employee denied that she had ever received any statements from Brian Meintjies. Filander explained that Meintjies worked for the department and not the GEPF. Employee agreed that she had received details of the pension payout. Filander believed that therfore she had received the statements as everything had been sent to the addreress as confirmed to be current by Employee. There was nothing under re-examination.

(15) Employee requested that she be allowed to submit written closing arguments. It was agreed that both parties would submit written closing arguments to reach me by no later than 17h00 on 19 October 2021. Closing arguments were received from both partues, the contents of whch have been noted.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

(16) From the well-documented evidence produced by the department it is abundantly clear that Employee initiated the process to apply for retirement on the grounds of ill health. Employee correctly chose the right forms to complete and even gave statements in regard to her capabilities at that time (bundle page 30). The form shows that Employee believed she was one hundred percent mentally fit and had written in the same statement that “she was nervous in the classroom and cannot perform at all. She cannot explain her sickness it is very strange”. Whilst Employee had stopped seeing Dr. Cozzie there is nothing in the records that would infer that Employee lacked the mental capacity to handle herself during arbitration. There was one stage when on 15 February 2015 a Sibonokuhle Employee signed as a second witness to Employee’s submission of her application for retirement due to ill health. Other than that one time there is no mention of the appointment of anyone to handle the affairs of Employee or that she was incapable of handling her own affairs.

(17) Once into the throws of arbitration Employee never really said anything about her alleged unfair dismissal. The focus of Employee was on her belief that the employer had not followed any procedures before placing her on retirement due to ill health. The evidence is overwhelming that Employee had been successful in her application for retirement on the grounds of ill health. I find on a balance of probabilities that Employee was placed on retirement due to her ill health and was never dismissed.

(18) There was a valid reason for placing Employee on retirement due to ill health in that her treating psychiatrist found that Employee was permanently unfit and as such cannot / may not be permanently appointed in any teaching capacity. The independent third party who assessed the case for Employee (under the Alexander Forbes banner) found that the impairment of Employee was permanent in nature in that she had been diagnosed with a serious mental and behavioural disorder with persistent symptoms despite optimal treatment. Employee was diagnosed with schizophrenia in 2012 and had since received ongoing management including several hospital admissions. Employee currently (at the time of the report) suffered severe symptoms of delusions, hallucinations, severe cognitive decline and social withdrawal as a result of her illness. It was noted that Employee is treatment resistant and will likely remain with residual psychotic features. According to her treating psychiatrist Employee is unfit for the open labour market due to the severity of her medical condition. It was also noted that Employee had been diagnosed with cancer and is undergoing chemotherapy.

(19) That being said by the medical experts handling the retirement on the grounds of ill health for Employee I have no authority as I am not a medical expert to counter their combined directive that Employee is permanently unfit and as such cannot / may not be permanently appointed in any teaching capacity. In other words meaning that Employee cannot / may not be appointed in any teaching capacity which includes working on a contractual basis as her illness is of a permanent nature. The only power to change that decision would be to submit a comprehensive medical report, preferably from Dr. Cozzie after he had time to consider her health status. Once having been found unfit for work in the labour market by two concurring specialists it is a mammoth task to have them overturn that decision. It was on medical advice that Employee was placed on retirement on the grounds of ill health.

(20) In the letter confirming the retirement of Employee due to ill health reference is made that this had been done in accordance with section 11 (1) (a) of the Employment of Educators Act no. 76 of 1998 which section states:- “11. Discharge of educators.—(1) The employer may, having due regard to the applicable provisions of the Labour Relations Act, discharge an educator from service — (a) on account of continuous ill-health. Employee was successful in her application for retirement due to ill health. Employee was fixated of section 12. Discharge on account of ill-health (of the same act) which states essentially the same thing that is that - an educator may be discharged on account of ill health in the circumstances referred to in Schedule 1. Section 12 of the Employment of Educators Act was substituted by section 8 of Act No. 53 of 2000 – The Education Laws Amendment Act 53 of 2000. The provisions to which Employee was referring to are about incapacity due to poor performance or ill health / injury. In those circumstances the employer may be able to accommodate the injury of an employee by moderating the working environment or giving more training. That accommodation is something over which the employer would have some degree of control. In the instance of Employee the departments not have any control over her serious medical condition and therefore cannot make any changes to accommodate Employee.

(21) The employer proved that they followed the procedure for retirement due to ill health acting on the application for such as received from Employee. Employee herself filled in a large amount of forms. Employee had been referred to Dr. Cozzie (psychiatrist) by her general practitioner. Employee was once referred to the school / district psychologist for observation and had been consulting Dr. Cozzie over a number of years. The cumulative medical reports were checked by the assessor from Alexander Forbes and the conclusion reached was agreed in that Employee was permanently unfit to work in any teaching capacity or to even work in the open job market due to her serious health condition. No matter what procedure was followed it cannot overturn the decision of the medical experts in their finding that Employee was permanently unfit for work.

(22) I have no jurisdiction to pronounce on anything related to the GEPF. In that regard Employee is advised to contact the Fund directly.
 

AWARD

(23) I have found on a balance of probabilities that there were valid reasons to have placed the employee on retirement due to ill health as a result of the medical decision that found Employee permanently unfit to work in any teaching capacity. I have also found that the procedure followed by the employer is acceptable given the decision made and assessed by medical experts.
(24) The employee’s claim is dismissed.

Gail McEwan
COMMISSIONER