ELRC 1066-21/22EC
Award  Date:
  28 June 2022
Case No. ELRC 1066-21/22EC

In the matter between





HEARD: 8 JUNE 2022


SUMMARY: Whether the refusal of the incapacity leave constitutes an unfair labour practice in terms of section 186 (2) of the Labour Relations Act 66 of 1995.



1. The matter was set down for arbitration on the 8th of June 2022.

2. The parties confirmed receipt of the notice of set down at the commencement of the proceedings, and there were no one pre-liminary issue outstanding.

3. The applicant (employee) was represented by Adv G Saayman from NAPTOSA while the respondent (the employer) was represented by Adv Mpati.


4. I am required to determine whether an unlawful labour practice has been perpetrated against the
5. I am also required to determine if the refusal of considering incapacity leave as paid leave constitutes an unfair labour practice.


5. In these proceedings the applicant referred an unfair labour practice dispute relating to the refusal of his incapacity leave.

6. The applicant is an employee of the Department of Higher Education and Training executing the duties of a Deputy Chief Education Specialist at the East Cape Midlands TVET College.

7. The applicant applied for incapacity leave due to ill-health and considered his leave as falling within the ambit of paid leave however was surprised to be advised that upon having same leave declined (after the fact), it would be considered unpaid as such there would be deductions made to his leave credits.

8. The applicant challenged the decision and due to the ongoing dispute the proceedings before this honourable council were then constituted.


11. The Applicant called one witness being Mr Johannes Retief and filed a bundle enclosing several documents.

12. The summary of his evidence can be summarized as follows:

12.1 He is the Deputy Chief Education Specialist.
12.2 In 2021, he suffered work related emotional stress and strain to the extent that a medical professional (a psychiatrist) insisted that he be booked off.
12.3 The applicant’s documents included reports from the above medical professional and another medical professional.
12.4 In complying with the departmental policy and procedures, he applied for incapacity leave and submitted all the relevant documentation to the relevant officials within the employer.
12.5 He applied for leave for two (2) periods being 31 May 2021 to 29 July 2021; 1 August to 15 December 2021
12.6 He took the leave and laboured under the impression that it was granted considering that he wasn’t advised of same leave being declined.
12.7 To his surprise the leave had been declined however he was only informed of the outcome on the 5th of March 2022 as such there would be deductions made on his leave credits to accommodate the days of his absence during the abovementioned days.
12.8 The time taken by the employer in responding to the application for leave per period was an excessive delay.
12.9 Upon enquiring further of the outcome, he was not assisted much by the officials within the province as such he instructed his union to intervene which resulted in the dispute before the ELRC at this instant.

13. The above witness was subject to cross-examination by the Respondent’s representative and the following was ascertained therefrom:
13.1 The employer (and its employees) is guided by two policy documents in this regard, those being the Personnel Administrative Measures (PAM) and the Policy & Procedure on Incapacity Leave for Ill-Health Retirement (PILIR).
13.2 The employer outsources the function of managing of incapacity leave applications to a company by the name of SOMA Initiative.
13.3 The applicant’s applications for leave only reached SOMA on the 9th of December 2021 although the applicant had submitted the leave applications on the 10th of June 2021, 2nd of August 2021 and 23rd of September 2021 respectively.
13.4 The employer enjoys the discretion to grant incapacity leave subject to certain conditions, correspondingly the employer is obliged to investigate an application for incapacity leave. The final determination of the incapacity leave is subject to the outcome of the aforementioned investigation.
13.5 The employer challenged whether the forms were complete adequately and whether the applicant understood the terms of PILIR to which the employee repeatedly placed on record that several parts of the forms required an official from the employer to complete similarly the employee placed on record that the employer had a prerogative to advise the employee (timeously) whether leave had been granted or not.
13.6 The employee was not very knowledgeable about all the policies within the workplace as such relied on the Human Resources and Employee Relations departmental officials to assist and guide in such instances.
13.7 When referred to Annexure B of the Application form for Temporary Incapacity Leave, the applicant testified that he had never seen that document and referred the employer to the part wherein same annexure signified that the form was For Health Risk Manager’s Use.
13.8 For all intents and purpose the employer was under the impression that it had initially granted the incapacity leave under the auspices of “conditional temporary incapacity leave” which the employee had no knowledge of said granting.

14. The applicant sought to call another witness, one Mrs Liezel Retief however the employer objected to her being called as she had been present during when the applicant was testifying thus she would be tainted by said testimony. The applicant’s representative acceded to the objection and no other witnesses were called.

15. The respondent called one witness being Ms Thembisile Promise Zondo from the Department of Higher Education and Training.
16. The abovementioned witness’s testimony can be summarized as follows:
16.1 She is a senior officer at the Department of Higher Education and Training.
16.2 She has been responsible for all matters related to PILIR and retirement for at least eight (8) years.
16.3 She testified that the applicant had completed a form applying for temporary incapacity leave then she explained the departmental process when such an application is made.
16.4 She placed on record that incapacity leave is an extra benefit which is subject to a specific process as such it isn’t automatically granted.
16.5 She reiterated that when an application is declined an employee can dispute the decline however there are conditions applicable thereto.
16.6 She testified that the applicant’s application for incapacity leave was declined due to insufficient evidence (as required by PILIR) as such even the subsequent applicants used the same doctors reports which were not satisfactory.
16.7 She reiterated that the applicant was initially granted leave conditionally however after the investigation, same conditional leave was withdrawn following his application being declined.

17. The witness was then subject to cross-examination and the following was ascertained therefrom:
17.1 The applicant’s application for incapacity leave was submitted to the Department timeously.
17.2 The applicant’s application for incapacity leave was considered and referred to SOMA.
17.3 A long time had elapsed between the date do submission and the date of referring the application to SOMA.
17.4 Only the an official form the employer’s HR can complete the document referred to as annexure B of the application form;
17.5 The applicant was entitled to a timeous response to his application however due to administrative issues it was not possible nonetheless his application did not meet the parameters of PILIR.
17.6 The applicant was only advised of the decline and reasons thereto well after the leave was utilized.

18. After considering the viva voce evidence, the parties were directed to make written submissions, I shall hereinunder summaries their respective submissions
18.1 The case of the Applicant per its submissions can be summarised as follows:
18.1.1 The applicant submitted an application for incapacity leave in terms of the PILIR.
18.1.2 The applicant complied with the applicable policy and practice.
18.1.3 The applicant in consideration of chapter H of the PAM document read with the PILIR.
18.1.4 At no time was he called to subject himself to an assessment nor was he contact in lieu of the investigation as envisaged in PILIR however a decision was made that concluded that his application ought to be rejected.
18.1.5 The employer waited for an unreasonably long time to advise the employee of the outcome of his application for incapacity leave.
18.1.6 The employer failed to comply with the above mentioned policies and conducted itself in an unreasonable manner and for those reasons the employee feels that he was the victim of an unfair labour practice.
18.2 The case of the Respondent per its submissions can be summarised as follows:

18.2.1 The applicant failed to establish the existence of an unfair labour practice.
18.2.2 The applicant failed to consider that the employer enjoys a discretion whether or not to grant incapacity leave. The applicant knew that incapacity leave is an extra benefit which was discretionary.
18.2.3 The applicant felt entitled to incapacity leave.
18.2.4 The applicant’s application for incapacity leave was subject to specific requirements and the applicant ought to have satisfied himself that same leave (the conditional temporary incapacity leave) was granted beyond the allocated days.
18.2.5 The applicant knew that his leave was granted conditionally and knew should same be declined, any leave taken would be considered against his leave credits.
18.2.6 The processing of leave applications is cumbersome as such it is not as easy to comply with the employee expectations.
18.2.7 In terms of section 38 of the Public Service Act 103 of 1994, the applicant unduly benefitted as such the respondent (as an employer) is entitled to undertake the action is deems fit.
18.2.8 The applicant knew that he had the right to lodge a grievance against the outcome of his leave application as such in the absence of such leave application, his referral and dispute was premature.

19. I now turn to the analysis of the submissions in relation to the applicable law.


18. The first premise to work from is what constitutes an unfair labour practice in consideration with whether a decision of the employer can be determined under this premise.

19. In considering the above, I divert from section 186(2) (a) of the Labour Relations Act 66 of 1995 which reads as follows:

“unfair labour practice is conduct or omission by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”.

20. As conceded above by the respondent, the cause of the dispute pertains to a benefit.

21. My next point of departure is whether or not the decision by the employer can be interpreted within the above premise, for this it is patently clear from the definition that both conduct and omission falls within the ambit of what constitutes unfair labour practice as long as it satisfies the specific parameters outlined in the section.

22. It is evident that the most critical element of this dispute is whether the applicant was entitled to the incapacity leave he had applied for and whether it was unfair for the respondent to deny the applicant this leave.

23. In addressing the above, I shall consider the policies applicable vis a vis the viva voce evidence (the testimony) and submissions which attempted to interpret it.

24. The PILIR places as its objective to set up structures and processes, which will ensure-
(i) intervention and management of incapacity leave in the workplace to accommodate temporary or permanently incapacitated employees; and

(ii) that opportunities for rehabilitation, re-skilling, re-alignment and retirement, where applicable, of temporary or permanently incapacitated employees are identified for the Employer’s further attention.

25. It is therefore determinable that PILIR seeks to be proactive and accommodative in a manner that also addresses the needs of the employer.

26. Correspondingly, same PILIR places an obligation on both employees (applying for incapacity leave) and employers (assessing an application for incapacity leave). It further places a stringent obligation on the designated HRM (health risk manager) when executing its duties.

27. During the presentation of viva voce evidence, the witness of the employer did not advise whether the employer had satisfactorily adduced its duties in compliance with PILIR, rather it elected to accept the outcome from SOMA.

28. Similarly the submissions of the employer sought to excuse the excessive delay and then rely on section 38 of the Public Service Act to enforce the action undertaken.

29. In the premise of the above, it is evident that the employer did not comply with its responsibility in terms of the PILIR.

30. Although the respondent attempted to place an onerous responsibility on the applicant in this regard, the applicant adduced evidence that it satisfied its obligation in terms of the PILIR as such it (the applicant) also relied on the PAM document which substantiated its case. The respondent could not challenge that the applicant had met the requirements per the PILIR.

31. It is worth considering that the respondent argued that it enjoyed a discretion relating the provision of the benefit applicable. To this argument, I refer to George v Liberty Life Association of Africa Ltd [1996] 17 ILJ 871 (LC) wherein the courts determined that the courts cannot play the role of the employer however the courts may play a supervisory role and test the fairness of the conduct of the employer (my emphasis). One therefore can determine that the employer’s discretion in this regard can be scrutinised in this, I (as the presiding officer) am required to evaluate the employers application of discretion against the objective of the applicable policy.

32. Lastly it must be noted that the respondent’s submissions pertaining to a lack of a grievance challenging the outcome is misleading as the applicant did include in its bundle a copy of grievance which was submitted around the 11th of March 2022.

33. In conclusion, it is evident that the applicant was effected by the decision of the respondent and In the premises I make the following award.


34. The applicant has established that the decision of the Respondent to decline its application for incapacity leave constituted an unfair labour practice.

35. The respondent failed to comply with its obligations as directed by the PAM and PILIR.

36. The Respondent is directed to grant the applicant incapacity leave for the period of 31 May 2021 to 29 July 2021 and the period 1 August 2021 to 15 December 2021.

Yolisa Ndzuta
Panelist: ELRC
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