ELRC301-22/23EC

Case Number: ELRC301-22/23EC
Commissioner: Henk Jacobs
Date of Ruling: 09 December 2022

In the matter between

NAPTOSA obo Samantha Flanagan
(Applicant)

And

Department of Education Higher- Eastern Cape
(Respondent)


Union/Applicant’s representative:

Adv. GD Saayman



Telephone: 082 519 1005
Telefax:
E-mail: saaymangavin@gmail.com

Respondent’s representative:
Respondent’s address: Mr Z Baartzes

Telephone: 012 312 5011
Telefax:
E-mail: dorianb@pec.edu.za

Details of hearing and representation

1. The arbitration hearing into an alleged unfair labour practice dispute referred in terms of section 191 (1) (b) (ii) of the Labour Relations Act 66 of 1995 (the LRA), was held Virtually on 16 September 2022, and on a face-to-face basis on 26 October 22 at the offices of the Respondent.

2 The applicant, Ms Samantha Flanagan, was represented by Advocate G. D Saayman, an official from NAPTOSA, the Department of Higher Education-Eastern Cape, was represented by Mr Z Baartzes, an employee of the Respondent.

3 The hearing was held in English and was digitally recorded.

4 It must be noted that the Respondent did not tender any evidence during the arbitration and did not call any witnesses to testify in the proceedings. On that basis, parties were provided an opportunity to file arguments on an answer and reply to basis.

5 Parties filed arguments later that what was agreed to and failed to serve arguments on each other for a response and reply, they only did so when it was shared by the ELRC and the commissioner on instruction. The Applicant filed arguments on 20 November 2022 and the Respondent filed a response by 22 November 2022 but failed to serve their arguments on the Applicant for a reply, and only did so on 01 December 2022, the Applicant then on 05 December 2022, indicate that they wish to file an objection against the Respondent arguments being considered and indicate that they wish to file a reply, on 07 December 2022, the Applicant had not filed a reply or an objection on 08 December 2022.

6 On that basis, the award was submitted without considering a reply from the Applicant or an application not to consider the Applicants arguments.


Issue to be decided

5. I am required to determine whether the Respondent committed an alleged unfair labour practice in terms of section 186(2) of the LRA, and if so, to award the Applicant the appropriate relief.

Background to the matter

6. The Applicants applied for temporary incapacity leave over a period of time, which was declined, by the Respondent and was subsequently recoded as unpaid leave, the Respondent embarked on deductions from the Applicants salaries to recover expenses incurred for the unapproved leave periods.

7. The Applicant seeks for the Commissioner to rule that the Respondents action to decline her application for temporary incapacity leave constitutes an unfair labour practice and to order the Respondent to covert her unpaid leave to paid incapacity leave.

Survey of evidence

8. This is a summary and does not reflect all of the arguments heard and considered in reaching a decision.

Applicant’s evidence

9. The Applicant testified that she is employed by the Respondent as a Lecturer at the PE TVET College, and that the Personnel Administration Measures (the PAM) documents is applicable to her.
10. The Applicant testified that she submit her application in terms of Annexure B, on 14 December 2021 to the secretary at the Dower Campus, she was told that the medical certificates attached was for the incorrect period, and she went back to obtain the correct medical certificates which she submitted.

11. Her first letter declining her application was signed during June 2022, and she was informed to file a grievance which she did. She received feedback regarding her grievance in July 2022.

12. The Applicants also testified that she did not receive a report from SOMA as to why her application was declined. Pages 1, 2, 3 to 4 of the Applicants bundle is the letter declining her application and the response to her grievance signed 14 July 2022 and reads as follows:

“Dear Ms Flanagan

ON GRIEVANCE OF: SHORT PERIOD TEMPORARY INCAPACITY LEAVE
02 NOVEMBER 2021 TO 08 DECEMBER 2021 927 DAYS0: CASE NUMBER ND4DHET-GS-20211102-51934701-1
Your application for temporary incapacity leave refers.
The Department of Public Service and Administration appointed an independent Health Risk Manager (HRM), namely Soma Initiative, to provide advice on the management of incapacity leave applications and ill health retirement in the Public Service.
The Sub-Directorate: Conditions of Service regrets to inform you that your grievance on your application for short period temporary incapacity leave for the abovementioned period has been declined.
The Department acknowledges, with empathy, that your grandmother passed away in 2021, and that this was a significant challenging experience for you. We further note that you reportedly experienced difficulties related to the Covid-19 pandemic, which further influenced your emotional and psychological well-being. In this context, however, the information submitted is not significantly different from that provided in support of your two temporary incapacity leave applications and, whilst not negating that you consulted a Psychologist and was managed medically by your General Practitioner, we remain of the opinion that there is simply insufficient evidence of continuous and significant vocational incapacitation due to psychological symptoms to warrant the allocation of paid temporary incapacity leave for this 27-day incident.”

13. The Applicant further testified on the Policy and Procedure on Incapacity Leave and ill-health Retirement (PILIR) as per page 44 of the Applicants bundle and read into record clause 7.2.9 which reads as follows:

“The Employer must within 30 working days after the receipt of both the application form and 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/his 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 disclose), 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, or conditions that the Employer may determine, e.g. to return to work, ect.”

14. Under cross-examination, the Applicant confirms that she is employed in terms of the Further Education and Colleges Act and the Public Services Act.

15. Her documents regarding her applications were completed mostly by her medical practitioner and she confirms that the application was subject to an investigation.

Applicant’s arguments

16. The Applicant submits that she is employed in terms of the Higher Education and Training Act (DHET) and applied for temporary incapacity leave in terms of the prescripts of the ELRC Collective Agreement 7 of 2001, or the directive of leave in the public service PSCBC Resolution 7 of 2000.

17. The Respondent failed to comply with the requirements in terms of the Collective Agreement 7 of 2001 or Resolution 7 of 200o when they failed to notify the Applicant of her application was approved with the 30-day period and took 4 months to do so which created an expectation that her leave application was approved.

18. The Applicant further relied on the matter between the Public Service Association of Southern Africa and Another v PSCBC, Gouvea and Others and the Department of Roads and Transport v Roberson and Others to substantiate their claim.

Respondent’s arguments

19. The Applicant applied for additional sick leave as follows: Temporary incapacity leave from 26 July 2021 to 26 August 2021, 26 August 2021 to 30 September 2021, 30 September 2021 to 01 November 2021 and lastly, the period in dispute 02 November 2021 to 08 December 2021
.
20. It was further submitted that the Applicant took a total 104 day’s sick leave over the period and that they had to appoint a substitute lecturer at a cost of R389 406 per annum and still pay the Applicant for her period of absence.

21. The Respondent appointed SOMA Initiative (Pty) Ltd as its dedicated Health Risk Manager to investigate the period 02 November 2021 to 08 December 2021.Such leave is granted solely at the discretion of the Respondent.

22. The Respondent further submits that Temporary Incapacity Leave is approved based on an audit of the Applicants leave of absence record, the medical evidence supplied by the Applicant which was not convincing that the Applicant was incapacitated, or that her medical condition shows any improvement, hence the Health Risk Manager could approve or decline. (It must be noted that no evidence to this effect was led during the proceedings and thus cannot be accepted as fact, the Respondent should have called the health Risk Manager to testify.)

23. For an application to be successful, the applicant must provide sufficient proof that he or she is too ill to perform their tasks and attached a medical certificate stating that his or her condition is temporary. In this instance, the period of absence was long, and the Applicant should have considered possible consequence should her application be declined.

24. The Respondent relied on POPCRU and L E E Mbongwa v the Department of Correctional Services and others to substantiate their claim. The Respondent also submits that the non-compliance with the 30-day provision the Applicant became entitled to approved incapacity leave.
Analysis

25. Section 186(2)(a) of the LRA states that an unfair labour practice means any unfair act or omission that arises between an employer and employee involving unfair conduct by the employer and an employee relating to benefits.

26. In Apollo Tyres South Africa (Pty) Ltd v CCMA and others (DA 1/11) [2013] ZALAC 3; [2013] 5 BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC) (handed down on 21 February 2013), the Labour Appeal Court held the definition of benefit, as contemplated in section 186(2)(a) of the LRA was not confined to rights arising ex contractu or ex lege, but included rights judicially created as well as advantage or privileges Employees have been offered or granted in terms of a policy or practice subject to the Employer’s discretion and that in this instance the early retirement scheme constituted a benefit.

27. It is common cause that the Applicant would have been entitled to apply for temporary incapacity leave in terms of Resolution 7 of 2001 or Resolution 7 of 2000 and both resolutions are identical in form and substance.

28. It is a further common cause that the Applicants applied for temporary incapacity leave and that the application was conditionally approved for the investigation which was later declined by the Respondent. It was a further common cause that the Respondent did not comply with the 30 working days after receipt of both the application form and medical certificates, to approve or to decline the temporary incapacity leave granted conditionally.

29. The non-compliance by the Respondent of the 30-day period forms the basis for the Applicants claim and submits she submit all the relevant documentation and medical certificates to substantiate her claim.

30. I must agree with the Respondent with regards to the 30-day period, the non-compliance with the policy does not afford the Applicant a right to qualify for temporary incapacity leave, at the most, it is a procedural issue which may prejudice the Respondents case. The non-compliance does not necessarily conclude that the Respondent committed an alleged unfair labour practice.

31. What needs to be determined is how did the non-compliance with the 30-day period prejudice the Applicant. The only conclusion that one can reach is that the non-compliance with the 30-day period provide the Applicant with a delayed response, had the Respondent complied with the 30-day period, the answer would remain the same, and it would place the Applicant in the exact position she found herself in at this stage.


32. What needs to be determined is whether the Respondents decision to approve or to decline the temporary incapacity leave constitute an alleged unfair labour practice. The Resolutions relied on by the Applicant create a right to temporary incapacity leave under certain conditions and that the Respondents decision to decline such leave may constitute an alleged unfair labour practice.

33. In this instance, the discretion to approve or to decline is vested in the powers of the Health Risk Manager through SOMA Initiative (Pty) Ltd. The Respondent did not place in dispute the Applicants application or its contents, the reason provided by the Respondent for declining the Applicants application is founded in a letter dated 06 June 2022 on page 1 and 2 of the Applicants bundle where the reasons in main relates to .the medical information that was insufficient to qualify her for temporary incapacity leave, there was no indication given that she required intensive management with her Psychologist, whether adjustments were made to her prescription, any evidence that she required a period of admission and or a referral to a Psychiatrist.

34. The Respondent went on further in the letter to state that she already requested a significant amount of time off due to her condition which counts against her in terms of her application.

35. The letter also sets out that the onus is on the Applicant to provide sufficient proof in respect of her condition and that temporary incapacity is an employee privilege granted solely on the discretion of the employer. It is this discretion that cannot be exercised in an arbitrary or capricious manner by the employer and is subject to scrutiny.

36. What is important to note is that the letters dated 06 June 2022, declining the Applicants application was signed and issued by Ms Gropp, the assistant Director: HRM&A as well as the letter dated 14 July 2022, in response to the Applicants grievance and both letters relied on the same reasons for declining her application.

37. It is fact that the Applicant applied for an extensive period of incapacity leave and all pervious applications were successful. The medical reports for the second last application and the last application submitted into record which was dealt with under cross examination is more or less the same in terms of its contents and form. If the medical reason were not convincing in the last application, as per the Respondent’s reasons for declining the application, then the reasons for the previous application should also not have been sufficient to grant the Applicant temporary incapacity leave because they were the same.

38. It further seems from the reasons provided by the Respondent, that the Respondent took issue with the Applicant extended periods of absence and its financial implication on the Respondent. I can sympathise with the Respondent regarding the financial implications this may have. The door is open to the Respondent to embark on a permanent incapacity process with the Applicant.

39. The fact that the Applicants previous application on the same reasons were granted, must be an indication that the Applicants medical reasons were sufficient, and to argue that it was now insufficient on a second application, is disingenuous. The Applicant cannot in one instance be temporary incapacitated and not in the second, based on no time frame provided for her condition or any further recommendations by her medical practitioner.

40. On that basis, the Respondent’s decision to decline the Applicants temporary incapacity leave is without merits and constitute an unfair labour practice. The Applicant discharge the onus that she indeed qualified for temporary incapacity leave.

41. What the Respondent could have done was to approve the temporary incapacity leave and proceed with an incapacity process in terms of the LRA.

42. In terms of relief, the Applicant wish for the temporary incapacity leave to be granted and corrected on persal accordingly.


43. In light of the above, I find it appropriate to make the following award.


Award

44. The Respondent, The Department of Higher Education and Training, act to decline the Applicant, Ms S Flanagan’s, temporary incapacity leave constitutes an unfair labour practice and envisaged in terms of section 186(2) of the LRA.

45. The Respondent is ordered to grant the Applicants temporary incapacity application for the period 02 November 2021 to 08 December 2021.

46. The Respondent is further ordered to update the Applicants leave on PERSAL from unpaid leave to temporary incapacity leave for the period 02 November 2021 to 08 December 2021.

Signature:

Commissioner: HENK JACOBS