PSES109-19/20KZN

Case Number: PSES109-19/20KZN
Panelist: Thandeka Mtolo
Date of Award: 29 March 2023

In the matter between

NAPTOSA OBO K. NAIDOO Applicant

(Union/Applicant)

DEPARTMENT OF EDUCATION – KWAZULU-NATAL Respondent

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The matter was heard on 20 September and 24 November 2022. Closing arguments were submitted on 02 December 2022. Proceedings were mechanically recorded and conducted at Durban Teachers centre. The matter was also heard virtually for clarity seeking questions at the request of the Commissioner on 23 February and additional closing arguments were submitted on 28 February 2023.

2. The Applicant, Kathryn Naidoo was present and represented by Rishal Juguth, a NAPTOSA official. The First Respondent, KZN Department of Education (the Respondent) was represented by Charise Folkard.

ISSUE TO BE DECIDED

3. Whether the respondent committed an unfair labour practice in terms of section 186(2) (a) of the Act.

BACKGROUND TO THE ISSUE

4. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as “the ELRC”) in terms of section 186(2)(b) of the Labour Relations Act (hereinafter referred to as “The Act”).

5. The matter was conciliated and remained unresolved. A certificate of non – resolution was issued. Arbitration proceedings took place on the aforementioned dates.

6. The Applicant averred that the First Respondent committed an unfair labour practice when it declined to approve the Temporary Incapacity Leave for the periods (17/07/2018-28/09/2018, 09/10/202018-02/11/2018 and 05/11/2018-30/11/2018).

7. The First Respondent stated that they followed procedure and did not commit an Unfair Labour practice.

8. Parties handed in Annexures A – D.

SURVEY OF EVIDENCE AND ARGUMENT

The applicant’s submissions

9. The Applicant representative’s opening statement.

10. In 2019 the applicant was an Educator at Eric Mtshali high school. During January 2018 she had a gallbladder removal. She had already undergone a gastric bypass in 2016. She submitted that the initial leave was granted by the respondent following the positive recommendation of Thandile Health Risk Manager (herein after referred to as THRM) THRM has since been replaced by Alexander Forbes, the leave was granted for the period of 17 January 2018 to 16 July of 2018 subsequently her treating psychologist Dr Kader had placed her on long leave for three further periods: 17/07/2018-28/09/2018, 09/10/202018-02/11/2018 and 05/11/2018-30/11/2018) a total of 108 days.

11. He further submitted that the purpose for the leave was to deal with post-surgery trauma and related complications. She was put on antidepressants and sedative medication. For the purposes of taking such medications she was put on long leave by the treating Practitioner. For all the above-mentioned periods the applicant submitted documentation which included medical reports of her treating practitioner and timeframes were adhered to. He further submitted that during this period the applicant was never contacted by the school or the respondent to indicate whether her leave was approved or declined, and if she had been contacted by the respondent to indicate that the leave was declined, she would have adhered to instructions of the employer or she would have utilized her right to lodge a grievance once the leave was concluded on 30/11/2018. She was back in school on 02/12/2018 and proceeded with her normal duties.

12. After a year since she applied for her long leave then the respondent began with deductions without consulting the applicant and therefore that should be deemed as an Unfair Labour Practice. NAPTOSA immediately contacted the respondent, and they reversed the deduction. The Respondent’s finance section acknowledged that it had erred and did not follow procedure in terms of long-term incapacity leave, the guiding document in incapacity is PILLIR (Policy and Procedure on Incapacity Leave and Ill-Health Retirement). She argued that the respondent did not follow processes in terms of PILLIR section 7.3.3.2. “Conditionally grant a maximum of 30 consecutive working days temporary incapacity leave with full pay subject to the outcome of his/her investigation into the nature and extent of the employee’s incapacity. The employee must accordingly be notified in writing. Use the example of the pro forma letter at Annexure C; and 7.3.4. “The Health Risk Manager must acknowledge receipt of the above-mentioned report within 2 working days and confirm in writing that the Employer shall receive feedback on the application within 12 working days inclusive of the 2 working days. It is incumbent on the Employer to confirm that the Health Risk Manager received the documentation as required.”

13. She stated that in 30 working days the respondent approves or declines, time frames were not adhered to and the application for leave was not granted, the employer contacted her in May 2019 indicating leave from previous year was not approved this is an Unfair Labour Practice by the respondent and he wishes leave to be granted in full in the amount of R72523,11.

The applicant testified under oath to the following effect:

14. She stated that she is an Educator at Appolo Secondary school, she is in the Umlazi District. From 15/04/2015 to 21/05/2021 she was at Eric Mtshali secondary school in the Pinetown District. She is an English teacher, FET phase. She has a history of ill health including Diabetic, Hypertension, Kidney stones, Endocrinology disorder, polycystic ovaries and hormonal disorders including family history of renal failure. She also suffers from severe depression and anxiety mostly caused by several medical conditions she suffers from, she indicated that she is on chronic medication for all the above-mentioned illnesses. In June 2016 she underwent surgery called a gastric bypass, it was done during June school holidays she returned on the third term with lots of adjustments regarding eating, past surgery issues with digesting food, intestines, abdominal pain acid reflux etc.

15. Most issues continued through to 2017 she was suppressed by medications she had nausea, bowel issues and adjusting to medication. While at school she had discomfort in the chest and was rushed to the hospital in the trauma unit. Dr Fanel was her Medical Practitioner she indicated that her stomach is stapled and checked if she had any leaks in her stomach, they had to replumb her entire intestine system. The Doctor found that she had an infection in her gold duct. He put her on medication from 2017 she continued getting chest pains they kept treating her for acid reflux. In December 2017 she consulted Dr Fanel and he recommended that she come on 9 January 2018 for surgery. She had her gallbladder removed and spent a week in hospital. The doctor visited the 2016 surgery stomach pouch, they found food was getting stuck in the hockey stick incision and this was similar to food getting fermented in the gastric pouch. In (bundle B p.97) it states that in March 2018 she had Gastroscopy done. She had to do a dry fast on the day of theatre and she was on mild sedation. The Doctor found ulcers and put her on medication. She kept having issues with her bowel, chronic diarrhea and food not digesting. She visited Dr Dee Pillay and another Doctor, they treated her with buscopan, acid reflux medication and medicine for nausea. Dr Harib suggested that she goes to Dr Fanel. Dr Fanel referred her to a Psychiatrist, Laurel King. Dr Fanel stated that Dr King also suffers from gastric bypass.

16. The first six months it became too much for the applicant to travel to Umlazi because of her bowel issues. She resided in Chatsworth and had to travel from there to Umhlanga for treatment and could not proceed with the treating Psychiatrist. She was there after referred to Dr Kader at a hospital closer to her home in Chatsworth. (Bundle B p.68) contains a psychiatrist report which indicated that she received treatment and simultaneously her leave was approved on the same day.. Dr King put her on leave for similar reasons as Dr Kader, some medication included antidepressants called Serapis which prevented her from being in the classroom the medication made her drowsy. She was on other meds for all the above illnesses from 17 July 2018 to 28 September 2018. She had involuntary bowel movements and had to wear nappies it went on for about three weeks. (Bundle C p.157-p.162) includes a report from Dr Kader. The school was located about 41 to 50 kilometers return which was approximately 45 minutes on the road due to the traffic and that she stayed in Chatsworth. (Bundle C p.160 par.3.7) talks about the diagnosis and the five AXIS test, the respondent stated that the five AXIS test was not available.

17. Her mother lived 5 minutes away she took care of the applicant, her husband had to alter his work schedule to look after the applicant and take turns with her mother. She made an application for Temporary Incapacity Leave using annexure B for long term leave. Her husband submitted it as soon as she received the prescribed medication. (Bundle B p.52-65 and 67) it was signed and completed on 17 July 2018. Rebecca, from Leave section, received it on 23 July 2018. She was never contacted by the school nor respondent regarding her leave. Doctor Kader was the treating Psychiatrist who put her on leave.

18. The applicant stated that she submitted the TIL application in three parts because the Doctor wanted her to be reviewed periodically. She is aware of timeframes and did abide by timeframes. The applications were submitted by her husband to leave section. (Bundle B pg.124 and 128) proved that her husband submitted within specified timeframes. She had been at home during this period. The applicant vehemently stated that the department did not contact her during this period and if the department contacted her, she would have weighed her options and may have returned to work if she was informed that her leave was declined timeously.

19. She further averred that she was never contacted by the respondent to inform her of the declined applications for TIL. She provided all her contact details and physical address. She further conceded that the respondent not contacting her was not the reason for her TIL to be declined.

20. The applicant stated that she returned to work on 03 December 2018. She received her TIL outcome in 2019 and subsequently lodged a grievance but the respondent deducted unpaid leave in May 2021 without her consent. She abided with all timeframes as stipulated on the PILLIR document. The respondent failed to abide by clause 7.3.3.2 to approve or decline within 30 days. She conceded that she did not submit any additional documentation regarding her leave or condition.

21. Under cross examination: She stated that (Bundle B pg.8) contained her grievance outcome. She also stated that her husband was contacted by the respondent constantly to inform him whether the TIL was granted or declined. The first period for 17 July 2018 to 28 September 2018 was signed by her husband. (Bundle B pg.30) was received on 14 November 2018 is a grievance form signed by the applicant. She did not recall but when she went to submit, they requested the 5AXIS. On (pg.108) is a grievance form, for the period 09 October 2018 to 02 November 2018, which was filled in and submitted by her husband.

22. The applicant submitted that she believed that her husband was contacted late during the periods in question. The applicant submitted that she could not give a definite answer whether the respondent followed procedure or not.

23. The applicant read from (Bundle C pg.357 and 358) and stated that she submitted everything they requested in detail, and she cannot account for how Thandile Health Risk Managers interpreted those submissions. She also stated that the third period was mainly psychiatric. She vehemently averred that she stands by her statement that she would have weighed her options and gone back to school had she been contacted earlier.

24. Under re-examination: She stated that for the most of 2018 she was not in school and only returned in December 2018. In Jan 2018 she had surgery. The period of 17 January -16 July 2018 was approved since she was not coping post-surgery. She submitted that her husband was in constant communication with the respondent, and they would only contact her husband the entire time. She further submitted that she furnished the respondent with evidence in the form of Psychiatric reports.

The respondent’s submissions

25. Witness: Rebecca Naidoo (Senior Personnel Officer: Leave section Pinetown)

26. The witness gave evidence under oath. She stated that she knew the case because the file was allocated to her early 2018. The applicant exhausted her leave cycle end of 2017. They receive 36 days sick leave and after exhausting it, you apply for TIL. Annexure A is for 29 days, Annexure B is for 30days and above. Leave is granted conditionally for 30 days pending the outcome. Both must be submitted within five days.

27. She received applications for January- June 2018 which were granted. The period 17 July 2018 -28 September 2018 (Bundle B: pg.42) which she typed; it is a TIL outcome that was received by applicant’s husband on her behalf. The applicant subsequently lodged a grievance which was declined on pg.24 due to no new information submitted. The period 09 October 2018 to 02 November 2018 pg.115 is a declined application outcome. A grievance was lodged and declined due to no new information furnished. The application to send the applicant to a Specialist was sent but declined because they only assess matters of more than one year in mental health related conditions. She would have qualified in April 2019. In closing she stated that she believed she followed procedure.

28. Under cross- examination: She stated that she was a junior staff. Ron Reddy was her supervisor, and she did not take instructions from Ron Reddy regarding this case. Mr Reddy would not be able to make decisions regarding TIL. The Head of Department would be able to make the decision. THRM would be able to make such a decision by making a recommendation to the respondent, the respondent can change the recommendation by writing a submission to the Head of Department to change the recommendation of THRM. Ron Reddy on pg49. submitted a request for secondary assessment but it was declined, and they followed the recommendation of THRM. She conceded that the respondent made one deduction from the applicant’s salary, stopped it, and refunded the applicant.

29. Under re-examination: She stated that the five days is given to the applicant regarding the TIL outcome and if there is no response it means Leave Without Pay will be granted.

The parties’ closing arguments.

Applicant’s closing argument

30. Policy and Procedure on Incapacity Leave and Ill-health Retirement. The applicant received a notice from Finance on 02 May 2019.

Details and background of the case

31. The nature of the dispute is that of unfair labour practice in respect of section 186(2)(a) of the Labour Relations Act 66 0f 1995 (“LRA”) relating to benefits. The term "benefit' includes :
"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 granted or offered to an employee in terms of a policy or practice subject to the employer’s discretion."
Apollo Tyres South Africa (Pty) Ltd v CCMA & others (2013) 34 IL J 1120 (LAC) 26. Temporary incapacity leave (TIL) is the kind of advantage or privilege referred to in the Apollo Tyres judgment.

32. In early 2018, The applicant, Mrs K. Naidoo, an educator at Eric Mtshali High School at the time, had undergone a Gastric Bypass and Gallbladder removal. Leave for the period of medical treatment and recovery was granted by Thandile Health Risk Manager (THRM) of the Department of Education (Department). The leave granted, was for the period, 17 January 2018 to 16 July 2018. Subsequently, her Specialist Psychiatrist, Dr S Khalil Kader, had placed her on leave for the period 17/07/2018 to 30/11/2018. This was for the purpose of dealing with post-surgery trauma, as well as related anxiety and depression. She was placed on anti-depressants and sedative medication to treat her condition.

33. Three (3) leave applications were made by the applicant during 2018 for the following periods:
• Period one: 17 July 2018 – 28 September 2018
• Period two: 9 October 2018 – 2 November 2018
• Period three: 5 November 2018 – 30 November 2018
34. All 3 leave applications made by the applicant for Temporary Incapacity Leave (TIL) were declined by the First Respondent, based on the recommendation of the HRM.

35. In terms of short-term and long-term temporary incapacity leave, the guiding document is the Policy and Procedure on Incapacity Leave and Ill-health (PILIR). Time frames in terms of the PILIR were never adhered to by the Department. Mrs Naidoo was never informed, during any of the three abovementioned periods, that her leave for said periods had been declined. Had she been informed timeously, Mrs Naidoo would have had an opportunity to return to school and follow the grievance procedure if necessary.

36. Further to this, in a letter dated 16/04/2019, and received by Mrs Naidoo on 2 May 2019, the Department stated its intention to recover an amount of R93 464.34 as overpayment for leave without pay.

37. The Department commenced with the deductions from Mrs Naidoo’s salary as at the 15th of May 2019. They had made a deduction of R6 043.66. This was done without consultation with the employee and is, in itself, an unfair labour practice. This practice falls outside the ambit of the PILIR. The deduction was subsequently stopped and reversed through the intervention of NAPTOSA.

Issues in dispute

38. The Department failed to consider the leave timeously in terms of PILIR. The applicant was deprived of a fair process. Procedure in respect of time frames was not followed by the employer. Whether the Department was justified in granting leave without pay for the period from 17/07/2018 to 30/11/2018. Whether the deductions made by the Department in respect of leave without pay in May 2019 were justified.

Issues the commissioner is required to decide upon.

39. Whether the Employee was prejudiced by the Employer’s failure to consider the applicants leave application timeously and thoroughly, in line with the PILIR. Whether the Department committed an unfair labour practice against the applicant.

Relief sought.
40. The leave for the three periods between 17/07/2018 to 30/11/2018 to be granted with full pay.

Leading evidence in chief

41. Mrs Naidoo testified to the severity of her health conditions and the effects of her surgery on both her physical and mental health. She stated that all her leave applications were submitted to her Principal via her husband within 5 days of her treating practitioner placing her on leave (clause 7.1.8 – PILIR) . The applicant stated that she was never contacted by the Department either telephonically or otherwise during her period of leave. The Employer in its argument, never produced proof of communication with the applicant whilst she was on leave. Mrs Naidoo stated that, had she been contacted by the employer whilst on conditional leave for a maximum of 30 days (clause 7.3.3.2 – PILIR), she would have returned to work. Mrs Naidoo did not breach the leave policy. She adhered to all time frames in terms of the leave dispensation.

First respondents witness
42. The first respondents witness was Mrs Rebecca Naidoo. Mrs Naidoo is a senior administrator in the leave section of the Pinetown District.

43. The witness was responsible for managing the applicants leave application and subsequent approval of leave without pay.
The witness confirmed that she is not a decision maker within the department. She also admitted that the final determination of leave of an employee rests with the Head of Department of Education in the province. She also confirmed that the return from the THRM is a recommendation for the employer to consider and not a final decision. That decision lies with the HOD. The witness confirmed that her supervisor, Mr Ron Reddy, had made a written request to the HRM for a secondary evaluation of Mrs Naidoo’s condition (Bundle A – pg. 49). Such a request would only have been made if the employer was still uncertain as to what determination to make for the leave application. The witness failed to provide evidence of communication with the applicant regarding the employers decision to decline the leave application within the time frames of the PILIR.

Summary
In terms of PILIR s 7.2.9

44. The Department made an ill-advised decision in determining leave without pay. Furthermore, the department did not adhere to the PILIR in terms of time frames. It failed to provide the employee with an outcome of her application for TIL within 30 days.

45. In PSA obo Gouvea v PSCBC and two others LC 2013 the court found that the employees cannot be subjected to retrospective leave without pay when an application for temporary incapacity leave is declined. Leave without pay can only be implemented in cases where the employer takes a decision to decline the application for incapacity leave within the period applied for and then only if the employee was instructed to return to work and the employee fails to do so. The employer may not recover salaries with retrospect effect. The consequence of retrospect effect is that it amounts to an unreasonable and arbitrary exercise of discretion with unfair consequences on the employee — Gouvea.
In line with this case the respondent's decision to decline the leave application was not made with due diligence and their contractual obligation in line with the PILIR. The employee had by this stage returned to work and therefore does not owe the employer any money.

46. It is ultimately the applicant who has been unfairly treated as a result of the respondent’s inefficient administration and failure to abide by an agreed upon policy. The applicant is the one that suffers financial prejudice and emotional distress as a result of this. The applicant humbly submits that the honourable commissioner finds in favour of the applicant that:
I. The employer acted outside the PILIR when they failed to act in terms of the said policy by not adhering to timeframes as contained therein.
II. That the employer acted unfairly and unconstitutionally by unilaterally deducting money from the employee in May 2019.
III. That the applicant be granted leave to for the period in dispute with full pay and benefits.

Additional closing arguments
Medication
47. Despite having undergone the gastric bypass and gallbladder removal in 2018, the applicant is still under chronic medication. She continues to take Serrapress and Trazodone (medication), however, now in smaller doses and less frequently. They are taken as needed. Both medications can be seen listed in the attached psychiatric report (3.8.1(a) and (b) - page 3). She is also on lifelong vitamin supplements since her operation. Further to that, the applicant still undergoes blood transfusions on a quarterly basis. Each transfusion session usually takes about 4 to 5 hours to complete.
Employer Policy on Communication
48. The Policy and Procedure on Incapacity Leave and Ill-Health Retirement (PILIR) does not contain any clause that permits the employer to contact the spouse/family member of an employee in order to communicate the outcome of leave applications. In every instance, reference is made to the employer communicating with the employee in writing. The applicant is not aware of any policy within the Department of Education which permits communication with one’s spouse/family member.

Counselling/psychotherapy
49. The applicant confirmed that her treating practitioner, Dr S.K Kader, did provide counselling sessions with her.
50. Upon request, the applicant made available a 5-Axis report to the health risk manager (see attached). Page 3 of the report contains information confirming treatment applied to the applicant after diagnosis. Item 3.8.2 refers to Psychotherapy which was administered in two (2) parts. (a) Counselling , and (b)Psychotherapy (CBT). The above was administered twice weekly. It was stated that her compliance was good.

Respondent’s closing arguments

Nature of dispute

51. Alleged unfair Labour Practice in terms of Section 186 (2) (a) of the Labour Relations Act No. 66 of 1995, as amended, with regards to benefits.

Applicant’s case

52. The applicant, Mrs K Naidoo alleged that the Department committed an unfair labour practice when her temporary incapacity leave for the periods of 17/07/2018 to 28/09/2018, 09/10/2018 to 02/11/2018 and 05/11/2018 to 30/11/2018 was deemed excessive and the leave was declined, therefore creating leave without pay. Mrs Naidoo now has a debt with the Department. Mrs Naidoo also alleged that the Department did not follow the procedures outlined in the Policy and Procedure on Incapacity Leave and Ill-Health Retirement (PILIR) document. She stated that the relief she sought is that the Department does not make deductions on her salary and the leave be granted in full.

53. During Mrs K Naidoo’s evidence-in-chief she stated that she had gastric-bypass surgery in 2016 which resulted in serious complications. As a result, she had another surgery in January 2018 to remove her gallbladder. Mrs Naidoo explained that she was referred to a psychiatrist named Dr L King to deal with the trauma of the gastric-bypass surgery. Mrs Naidoo further explained that since Dr King’s practice was too far and she was too sick to travel, she chose to change her psychiatrist to Dr SK Kader as he was closer to home. Mrs Naidoo explained that she was still experiencing complications from the surgeries and was on many different medications in 2018. She also suffered with anxiety and depression during that period.

54. Mrs Naidoo stated that she followed the procedure outlined in the PILIR document and submitted her Temporary Incapacity Leave documentation (Annexures) for the period of 17/07/2018 to 28/09/2018 within the required five working days with supporting documentation to the Department and her husband would submit on her behalf. Her application for Temporary Incapacity Leave was not approved, and she alleged that she was never informed by the Department or the school that her leave was declined. Mrs Naidoo alleged that this was the same for the other two periods including 09/10/2018 to 02/11/2018 and 05/11/2018 to 30/11/2018. Mrs Naidoo also stated that she had received the letter from the Department for the third period of her Temporary Incapacity Leave in 2019. Mrs Naidoo alleged that the Department did not follow its procedures with regards to her Temporary Incapacity Leave applications in terms of the PILIR document, especially with regards to the 30 days response for all three periods. Mrs Naidoo further stated that if she was informed timeously, she would have reviewed her options and returned to work.

55. During Mrs Naidoo’s cross-examination, attention was brought to the grievances that she lodged regarding the temporary incapacity leave applications that was refused for the periods of 17/07/2018 to 28/09/2018 and 09/10/2018 to 02/11/2018. Mrs Naidoo stated that she forgot that she had lodged a grievance for the period of 17/07/2018 to 28/09/2018 that was signed on 04/10/2018. She also stated that the second grievance for the period of 09/10/2018 to 02/11/2018 was signed and completed by her husband. It was then put to Mrs Naidoo that the Department was in contact with her regarding her declined applications for Temporary Incapacity Leave she stated that her husband was in constant contact with the Department. It was also put to Mrs Naidoo that the Department had followed its procedures regarding Temporary Incapacity Leave for all periods.

56. During Mrs Naidoo’s cross-examination, attention was also brought to the reasons that Thandile Health Risk Manager recommended that the three periods, i.e., 17/07/2018 to 28/09/2018, 09/10/2018 to 02/11/2018 and 05/11/2018 to 30/11/2018 were not valid and advised the Employer accordingly. Mrs Naidoo was requested to comment on the reasons Thandile Health Risk Manager did not validate her leave, she stated that she was sick during those periods. It was then asked to Mrs Naidoo whether she still stands by her comment that she would have returned to school if she knew that her leave was declined which she responded in the positive.

57. Mrs Naidoo stated in re-examination that her husband was in contact with the Department. She further stated that she submitted all the documentation to the Department that was required by the Health Risk Manager (THRM).

Respondent’s case

58. Mrs Rebecca Naidoo from Leave Section- Human Resource Support Services, Pinetown District was called as a witness for the respondent party. She dealt with the administration aspects of Mrs K Naidoo’s leave applications.

59. According to Mrs R Naidoo’s evidence-in-chief, she had been dealing with the applicant’s leave since the end of 2017, beginning of 2018. According to Mrs R Naidoo, she would receive the Temporary Incapacity Leave applications for the applicant party and work on all the administrative procedures when dealing with leave, including, processing the leave on Persal, sending the documents to THRM typing out the response from THRM and sending the letter to the Circuit Office for the Principal to collect once it is signed by the District Director. According to Mrs R Naidoo, the Department had followed procedures regarding the applicant’s Temporary Incapacity Leave application. Mrs Naidoo stated that she was in contact with the applicant’s husband and the school principal. According to Mrs R Naidoo, the leave is granted conditionally, meaning that leave is granted with full pay pending the recommendations of THRM. She further explained that on all Annexure A and B forms (Temporary Incapacity Leave Applications) this is stated in the front page, and if the leave is declined it is converted to unpaid leave. This is what happened to the applicant. As a result, Mrs Naidoo created a debt for finance to recover the monies from the applicant.

60. During Mrs R Naidoo’s evidence-in-chief she discussed the reasons for THRM not validating the leave. This included not providing substantial evidence of incapacity and sick leave mismanagement during the 2016 to 2018 period. She had been in constant contact with the applicant’s husband regarding Mrs K Naidoo’s leave. She further stated that Mrs Naidoo had submitted grievances for the periods of 17/07/2018 to 28/09/2018, 09/10/2018 to 02/11/2018 which was forwarded to THRM. She denied the allegation that the Department did not follow its procedures regarding Temporary Incapacity Leave.

61. During cross-examination, Mrs Naidoo stated that she does not make the decisions about the leave, she types out the response from THRM. She re-iterated that the Department followed the procedures regarding the applicant’s leave application.

62. The Policy and Procedure on Incapacity Leave and Ill-Health Retirement (PILIR) states in paragraph 7.1.8. that an employee must apply for temporary incapacity leave personally or through a relative, a fellow employee or friend, within five working days, from the first day of absence. In paragraph 7.2.10.2 of the PILIR document, it is stated that the employee must be informed in writing of the refusal of the temporary incapacity leave and the reasons for the refusal. That was done for the applicant party. It does not state how the correspondence gets to the employee.

63. According to the respondent’s witness, Mrs R Naidoo, she was in contact with the applicant’s husband and the school principal regarding the decline of the temporary incapacity leave by the Department. The fact that there were two grievances lodged by the applicant proved that the applicant was informed of the outcomes regarding her temporary incapacity leave applications.

64. The respondent party re-iterates that the Department did not commit an unfair labour practice towards the applicant party.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

65. I have examined the evidence submitted by both parties and have duly perused the submitted Bundles. I am required to determine whether the Respondent committed an unfair labour practice in not approving Temporary Incapacity Leave for the periods: 17/07/2018-28/09/2018, 09/10/202018-02/11/2018 and 05/11/2018-30/11/2018) a total of 108 days.

66. The Applicant bears the onus of proving that the Respondent committed an Unfair Labour Practice. In deciding on an unfair labour practice, the courts have clarified the test to be that of fairness. In Apollo Tyres SA (Pty) Ltd v CCMA and Others (DA/11 (2013 ZALAC 3, (2013) BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC) (21 February 2013) the Labour Court reiterated that unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious, or inconsistent conduct, whether negligent or intended.

67. It is common cause that the deduction made by the respondent in May 2019, was stopped and reversed in May 2019.

68. It is common cause that the spouse of the applicant was constantly contacted by the respondent and was informed of outcomes hence the grievances were received by the respondent in 2018. The timeframes of when communication took place could not be established.

69. The reasons for the incapacity were based on the applicant’s mental health. Namely, Generalised Anxiety Disorder with panic attacks, and Major Depressive disorder which led to her being incapable to perform her duties for the aforementioned periods. It is common cause that the applicant has chronic illnesses and takes chronic medication for such illnesses, it is common cause that Dr Kader a psychiatrist recommended the leave.

70. The matter is referred as an Unfair Labour Practice in terms of Section 186 (2) (a) of the Labour Relations Act No. 66 of 1995, with regards to benefits. The applicant disputed procedure and substantive fairness.

71. At Arbitration the applicant submitted and expounded on evidence regarding her chronic illnesses, surgery complications and other medical issues not related to the condition that incapacitated the applicant. It only came to light later that her application was due to psychiatric reasons. Upon perusal of the submitted bundles it was clear that the applicant submitted evidence based on her previous medical issues and chronic illnesses that were in line with previous periods that the THRM had approved. She expounded on complications and repeated surgeries which impacted her mental health. She failed to understand that THRM would embark on an investigation regarding her psychiatric condition and any other complications not related to her psychiatric condition would not weigh much in the absence of supporting evidence from a treating Specialist suitably qualified to deal with such a condition. Side effects of surgeries and medication from her chronic illnesses had to be supported and documented. I found no evidence for the periods disputed to support the claims of post- surgery complications and side effects of medication related to her surgery and chronic illnesses.

72. The applicant submitted that she was on medication for Depression which led to a side effect of drowsiness, and in the main suffered from involuntary bowel movements thus she required leave to stay home and take her medication without feeling drowsy in the class. On the contrary the applicant repeatedly submitted she would have weighed her options and gone back to school had she received a response from the respondent earlier. The statement of the applicant contradicts the TIL application in its entirety. The applicant was deemed incapable or partially incapable of performing her duties due to drowsiness caused by her medication for Depression, involuntary bowel movements and other complications.

73. PILLIR Annexure G 1.1.3 states that A Psychiatrist should express their professional opinion only on functional impairment and not incapacity.

74. PILLIR Annexure G 2. (c) states that adequate dosages must be (close to the manufacturers’ recommended maximum dose, or highest dose that the patient can tolerate) of different classes of antidepressants, for an extended period (e.g., 6 weeks of each). Bundle A pg.64 par 4.1 “Dr Kader’s consulting rooms were contacted to ascertain when treatment augmentation occurred. The Health Risk Manager learnt that Trazadone was increased on 12 May 2018, at which time Serrapress was also added to the treatment regime. THRM stated the application is not advised for the period 17 July 2018 to 28 September 2018 in line with the guidelines of the South African Society of Psychiatrists”. A period of 6 weeks is generally regarded as appropriate for a response to treatment, whereafter dose adjustment should occur if an optimal response was not achieved. The period of 16 April 2018 to 22 June 2018 was approved which was in line with the 6 weeks response to treatment period. The period of 17 July 2018 to 28 September 2018 was deemed excessive for the condition in the absence of treatment augmentation or complications.

75. The applicant did a resubmission of medical evidence when applying for TIL for the period of 09 October 2018 to 02 November 2018. The evidence or information used to apply for the second period was the same as that of the first period which was declined.

76. The applicant submitted that the third period was predominantly for psychiatric reasons which suggested that the two previous periods were for reasons that were beyond psychiatric reasons, but no medical evidence supported these claims.

77. The period of 05 November 2018 to 30 November 2018 (Bundle C pg358). The TIL application was based on Generalised anxiety disorder with panic attacks and Major depressive disorder plus other medical conditions, involuntary bowel movements and surgery complications but no evidence supported the claims. Again, the other medical conditions formed part of the TIL application but were not supported by any evidence. The Psychologist report was also not submitted. In PILLIR Annexure G 2. (c) iii Psychotherapy is usually indicated as adjunctive treatment in refractory depression. Patients’ needs to be compliant. The psychiatrist recommended the leave but no treatment augmentation since May 2018.

78. Thandile Health Risk Manager report from the first to the third period indicated lack of evidence by the applicant and that further applications should be accompanied by a 5-axis DSM-IV-TR/DSM/5/ICD-10 diagnosis reports of special investigations performed, dates of consultations, treatment rendered and dates of treatment augmentation, response to treatment, periods of hospitalisation, compliance, complications, and prognosis. The applicant submitted that a 5-AXIS DSM-IV report was submitted and thus her TIL should be approved. The submission of required documentation is a procedure to be followed so that a well-informed assessment and investigations can be conducted. It does not give an entitlement to approval upon submission of requested documentation. It is still subject to investigation by THRM.

79. Consequently, after the submission of the above. The response from THRM stated, “Not all treatment options were explored” The applicant was on Serrapres 20mg daily and Trazodone 50mg at night, and the Trazodone was decreased from a 100mg to 50mg. THRM report stated that recognised national and international treatment options that could impact on the employee’s health have not been explored”. Her treatment was last augmented in May 2018. A report from the treating Psychologist should have been included but was never included. It must be noted that it is the duty of the applicant to furnish THRM with required documentation to support her TIL application. The psychiatrist did not address the issue of the treatment not being in the accordance with the required standards and national and international options not being explored. In the absence of an explanation from the treating Psychiatrist I must accept the submissions of the respondent. The psychiatrist had multiple opportunities to address the concerns of the respondent, but the concerns were never addressed. In (Bundle C pg157) a motivational letter for the third period (05 November – 30 November 2018) from Dr Kader, he attributed the involuntary bowel movements as the main reason why the applicant could not drive 50km to work. The condition was reiterated on all three periods, but no evidence supported it. I accept the respondent’s submissions that the applicant’s condition did not warrant such a prolonged period in the absence of additional evidence.

80. TIL is however granted at the discretion of the respondent, and as stated by the respondent’s witness the THRM recommends, and the respondent can apply to the HOD to deviate from such a recommendation. I found no basis for the deviation expectation. With regards to the secondary assessment, she was first diagnosed in 2016, and again in April 2018 when her first TIL application for GAD and Depression was submitted in April 2018 and to be re-assessed she would have had to have been diagnosed and suffering from the same condition for a period of twelve months hence the declined application for the secondary assessment.

81. Paragraph 7.3.5.1 (3) of the PILIR, the employer has 30 days within which to approve or refuse temporary incapacity leave. Where an employee was not satisfied with the decision, he/she may lodge a grievance under the provisions of paragraph 7.3.5.1 (i) of PILIR.

82. Both parties submitted that the respondent was in constant communication with the spouse of the applicant, he sent TIL applications, received outcomes, and sent the grievances on behalf of the applicant. The outcomes did not adhere to the 30-day period and so the applicant submitted her TIL should be granted because the respondent did not adhere to the 30-day period.


83. In POPCRU and Another v Department of Correctional Services and Another (D642/15) [2016] ZALCD 25; (2017) 38 ILJ 964 (LC) (23 November 2016) states that “A late determination of an employee’s application for additional leave, as lamentable as this is, and a subsequent instruction to pay back money to which the employee was not entitled does not produce a decision that retrospectively deprives the employee of a right to the payment in question. An employee seeking additional sick-leave in terms of PILIR has conditionally been paid a salary while their application for additional leave is considered. This consideration should be over within 30 days. However, if the period the employer takes to decide the application exceeds the 30 days set out in PILIR, I do not see how the conditionality of payments to an employee, subject to a medical assessment, hardens into an entitlement after the 30 day investigation period lapses. Nor, in light of clause 7.2.2.2, 7.3.3.2 and note 4 of PILIR, should a reasonable employee applying for additional leave assume that, should a medical assessment go against them, even if delayed, they are entitled to be paid for their absence from work. It seems to me that, if the underlying medical condition which prompted an employee to seek additional sick leave, is assessed not to have warranted such leave, this fact must determine what happens to any payments they received while applying and not the employer’s delay in attending to the application.” My view is that the applicant applied for the TIL application with an understanding that the application’s success is based on the investigation of medical evidence that will support the application in accordance with PILLIR. There is no clause in the PILLIR document that gives an entitlement should the 30-day period lapse.

84. I am aware of the judgment of Cele, J in Public Service Association of South Africa and Another v PSCBC, Gouvea and Others. The applicant’s reliance on Gouvea has no grounds since the facts in this dispute are not the same as that of the case of Gouvea. The deductions in this dispute were effected once in May 2019, stopped and reversed. The applicant submitted her grievances in 2018 with the assistance of her spouse whom the respondent was in constant communication with regarding the TIL application of the applicant. The applicant stated that she only received her TIL outcome in 2019, and thus her claim against the respondent should succeed. The respondent was in constant communication with her spouse in 2018 regarding her TIL applications, and also received those grievances on her behalf in 2018. She filled grievances accordingly in 2018 through her spouse and became aware of her TIL outcomes in 2018 through her spouse. It is my view that the applicant was not prejudiced by the respondent by constantly contacting the spouse whom was deemed care-taker of the applicant at the time.

85. The applicant stated that she would have weighed her options and went back to school with uncontrollable bowel movements. The statement is in contradiction of her psychiatrist report. She was deemed partially or incapable of preforming her duties. Her TIL failed due to lack of evidence to support the prolonged period for the diagnosis. It must be noted that the applicant suffered from different medical conditions and complications as submitted by her psychiatrist on her TIL applications, while her mental health deteriorated, but failed to produce evidence to that effect from a designated medical specialist for the specific condition.

86. I am persuaded that the medical reports did not address the exact reasons as to why the applicant was not able to report for work in the absence of corroborating evidence for her other medical conditions as well as treatment augmentation after the six week period if she was non responsive to the initial medication prescribed, to the contrary the psychiatrist stated her response was guarded. The reports only described her medical condition and did not say what was preventing her from reporting for work in accordance with the medical condition diagnosed. It would seem as if the applicant party still did not understand what information was required in the medical reports. Her psychiatrist did not address the concerns of THRM in terms of medication that was prescribed that did not meet the standards. The psychiatrist did not alter the medication to meet the required standard for the condition. The Psychologist report as requested was never furnished since it formed part of her treatment as advised by THRM and her psychiatrist. The evidence was not complete; the psychologist report was never included and the reports from the treating medical doctor to expound on surgery complications and side effects of chronic illnesses medication.

87. TIL is granted at the discretion of the employer after HRM assessment and recommendation. There are strict guidelines that need to be followed when addressing each application for TIL. In this matter I am persuaded that the respondent had been fair and reasonable in its consideration as to whether to grant TIL to the applicant or not. The respondent had tried to guide the applicant on exactly what information and proof was required from the medical reports. The applicant failed in her attempt to get this vital information from her psychiatrist, psychologist or medical doctor for the disputed periods. Her TIL application included medical conditions that were beyond the scope of her psychiatrist and was not supported by any evidence. The applicant submitted that she still takes her depression for medication.

88. I find that the applicant failed to prove that the respondent committed any Unfair Labour Practice for declining her leave for the periods: 17/07/2018-28/09/2018, 09/10/202018-02/11/2018 and 05/11/2018-30/11/2018).

AWARD

89. The Respondent, namely, Department of Education KZN did not commit any Unfair Labour Practice relating to a benefit against the applicant, K. Naidoo.

90. The application is dismissed.

THANDEKA MTOLO