ELRC868-22/23WC

ARBITRATION AWARD

Commissioner: Gail McEwan
Case No.: ELRC868-22/23 WC
Date of Award: 7June 2023

In the ARBITRATION between:

SAOU obo RONÉL BOTHMA
(Employee)

and

THE WESTERN CAPE DEPARTMENT OF EDUCATION
(Employer)

Union/Employee’s representative: Rudolph Baard (SAOU)

Employer’s representative: Ghaatoon Khan

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. Arbitration was held on 29 May 2023 and was heard virtually with the consent of the parties. Present was Ronél Bothma (employee) who was represented by Rudolph Baard (SAOU) (Suid-Afrikaanse Onderwysers Unie). The Western Cape Department of Education (employer) was represented by Ghaatoon Khan (labour relations officer). The Certificate of Outcome declaring the matter unresolved at conciliation is on file and is dated 24 February 2023. These proceedings were digitally recorded; an Afrikaans interpreter (Daniel Kova) was present and both parties submitted a bundle of documents.

THE ISSUE IN DISPUTE

2. I am required to determine on a balance of probabilities whether the employer committed an unfair labour practice when Bothma was not granted three days special leave: urgent matters and instead had granted her unpaid leave with a deduction, which was not authorized, of R3863.86 having been made from her December 2022 salary. Both substance and procedure were in dispute.

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. Bothma started working for the employer on 1 January 1988; is a level 1 educator at the Ballpark Primary School in Bellville; she earned R41 375.82 per month and claims she was subjected to an unfair labour practice when she was not grated three days special urgent matters leave to prepare for the marriage of her daughter and one week later the marriage of her son. Neither of the children lived in Cape Town and Bothma had things that only she could do to finish for the weddings preparations to be held in Cape Town. Instead Bothma was granted three days unpaid leave with an unauthorised deduction having been made from her December 2022 salary. The relief sought is that employer should amend its decision to implement leave without pay and instead grant leave for special urgent matters and also pay back the R3863.86 deducted from the December 2022 salary of Bothma

5. 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..


SUMMARY OF EVIDENCE AND ARGUMENT

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

6. Ronél Bothma testified that she submitted an application for special leave (urgent matters) on 1 November 2022. The three days leave required were 7, 8 and 9 December 2022 as her daughter was due to get married on 10 December 2022 with her son also getting married but on 17 December 2022. Bothma needed this leave to conclude weddings preparations that only she could finish. The daughter worked on yachts in the Mediterranean whilst being based in Italy and her son lived in Johannesburg. Both weddings were to be held in Cape Town. Bothma needed the three days leave to do the final wedding preparations being the only one based in Cape Town. The special urgent matters leave was applied for when she completed the leave application form on 1 November 2022. The form was handed into the principal (Piero Louw) who at the time had been in his office. Louw never agreed that her application fell under the category of special leave for urgent matters. Bothma undertook to phone the Department to check if her needs fell under that category. Bothma phoned the Department and asked them a number of questions as follows:- (i) Whether she was entitled to leave when her children got married and this was confirmed. (ii) Whether she could take special urgent matters leave for the weddings of both her children and this was agreed. (iii) Whether she needed to take capped leave or annual leave in this regard and it was said that she was not forced to do so. (iv) Whether she needed to add anything to her application for such special leave to strengthen her chances of having it approved. Bothma was told she could add copies of the wedding invitations to her application – which Bothma had then done. (v) Whether she was expected to pay for the substitute teacher for the days she took as special urgent matters leave. Bothma was told that this was the responsibility of the SGB (School Governing Body). Bothma explained she regretted not taking down the details of the person to whom she had spoken at the Department. Bothma at this point thought that her leave application had been approved and had taken those days off as if she had approval. Bothma only found out on her return in 2023 that her special urgent matters leave application had not been approved. Bothma had asked Louw what the status was of her special urgent matters leave application as she had left the completed application form on his desk in November 2022. Bothma had thought that Louw would get back to her but when that never happened she was under the impression that this special urgent matters leave had been approved. In December 2022 the weddings had taken place. The next thing that happened was that Bothma received a pink form on 19 January 2023 informing her that the leave requested would be granted as unpaid leave. This had been the first time Bothma became aware of her three days leave being unpaid and the amount had already been recovered from her December 2022 salary. The December salary was short paid by the deduction made for the three days which had gone unnoticed by Bothma at the time as she was very busy with so many things. Bothma felt angry, bitter and disappointed that her special urgent matters leave had been refused. Bothma was not one who put in for leave and classes at the time had ended at the school. Everything had been finished and no work was outstanding for the children in her class. All work had been done by week twelve which was by the end of November 2022 and all the reports were completed. Bothma asked the school secretary to see her leave application form to find out what had happened. Louw had never got back to Bothma on whether her leave had been approved or not and why it then became unpaid leave. That was the first time Bothma was aware of what Louw had said about her leave application. Referring to ER bundle page 2 Bothma read into the record a letter dated 7 November 2022 in which Louw had written that “He cannot recommend the specific type of leave that she wanted to take for organizing and attending to her daughter’s wedding”. Louw had urged Bothma (in the letter not previously seen) to refer the matter on appeal to the HOD to change the leave to unpaid leave or use her capped leave. Louw ended by stating that the school cannot be functional without a teacher in the classroom and there were no substitute teachers were available. Bothma on reading this letter had become distressed as Louw had written things in upper case and used a green highlighter to mark certain words in the letter including that she had to take unpaid leave. Bothma told Louw how upset she was as it had not been an unreasonable request to take leave when both her children were getting married. Louw had retorted that there could be four weddings and the principles of the matter would be unchanged. Bothma and Louw had disagreed with what was meant by urgent matters and Louw had given an example in this regard like when a geyser broke at home. As far as substitute teachers were concerned Bothma pointed out that that there had been one in her place for the three days so it had not been impossible to find substitute teachers. On ER bundle page 3 are photographs of the wedding invites which Bothma had submitted with her application. On ER bundle page 4 is a letter from the Director of Service Benefits dated 15 November 2022 (also not previously seen by Bothma) in which it confirms her unpaid leave and if she felt aggrieved then she should follow the grievance procedure. The undated letter on ER bundle page 5 confirms that her unpaid leave for the period 7, 8 and 9 December is granted and the money will be recovered for the three days leave (valued at R3863.86) from the December 2022 salary of Bothma. The letter had been stamped by H D Murray which was from the financial accounting department. On 1 February 2023 Bothma sent her grievance into Carmen Robinson under cover of an email as shown on EE bundle page 4. The grievance form was attached to the emails and is on EE bundle page 5. EE bundle page 19 is from the PAM (Personnel Administrative Measures) document and covers ‘family responsibility leave plus special leave for urgent matters. In point H.11.6 it states that: “An institutional based-educator may, during a scheduled working period, be granted special leave to attend to an urgent matter, the nature of which is such that it warrants such an educator’s absence” (EE bundle page 20). Bothma saw this as being a right to apply for such leave and the wedding of her daughter was seen by her as being urgent and private. This was something which she had to do as there was no-one else to do the preparations that needed to be done for the wedding and she needed to attend to these things at a specific time. Bothma was not aware of any policy at the school which covered this point in more details. On EE bundle page 21 is a circular 0024 of 2017 the subject of which is the implementation of leave without pay for employees (office- and institution based educators and public service personnel.) In clause 3.1 is states: “ …….It is the responsibility of the manager or principal to inform the employee if leave is not recommended and the reasons for it. Moreover managers and principals are requested to provide the Department with the contact details of the employee concerned (email address and phone number).” In point 3.6 it states that: “Employees will be informed of leave granted without pay (all categories) by the Directorate: Service Benefits and a follow-up letter will be issued by the Directorate: Financial Accounting informing them of the amount of the salary overpayment and details for the recovery thereof. Employees are afforded an opportunity after each letter (five days after the letter from the Directorate: Service Benefits and 30 days after the letter from the Directorate: Financial Accounting) to raise their concerns.” Furthermore in the circular it states that the contents of this circular must please be brought to the attention of all concerned. Bothma confirmed that this circular had never been brought to her attention. Bothma believed that the manner in which she had been treated was unfair as this was the first time in her long service that she had applied for such leave and therefore she had taken further steps in this regard.

7. In cross-examination Bothma agreed that she is an educator; does not get annual leave and instead gets school holidays. Bothma further agreed that she would get family responsibility leave, sick leave and leave for urgent mattes. It was confirmed that Bothma had applied for leave on 7, 8 and 9 December 2022. It was agreed that this leave was to be used to make arrangements for both her children’s weddings. Bothma had applied for these three days leave under the category for special leave for urgent matters on 1 November 2022 (ER bundle page 1) – more than a month in advance. Those days were full school days. Referring to ER bundle page 4 Bothma agreed that she did not see any approval for this leave. Louw had signed the application although he had not approved such leave. Bothma explained that she and Louw had not agreed about what was recognized as urgent. Referring to ER bundle page 2 it was put to Bothma that Louw had never seen this leave as being urgent. Bothma denied that she had seen this letter from Louw previously and that Louw had ever told her that such leave would be denied. Bothma agreed that they disagreed in principle what urgent matters covered. Bothma explained that the second application form had been seen by Louw and yet he had never come back to her in this regard. Bothma explained that she had left the first meeting telling Louw that she would speak to the Department and thereafter she had left the second application form on his desk. Bothma in total had two discussions with Louw about her application. They had never agreed between themselves what constituted an urgent matter although had given the example of when the geyser at home burst. Although told, Bothma had not agreed, that she would be responsible to pay for the substitute teacher. Those had been the only topics raised. Bothma reiterated that she had said she would find out from the Department and hence that her led her to repeat the process. It was conceded that Louw had never agreed and Bothma also had some discussions with SAOU. In the first session they had spoken about urgent matters and the payment for a substitute teacher. Bothma agreed that she had not wanted to use her capped leave and told Louw that the Department had said that this would not be necessary. The second submission had been placed on the desk of Louw despite him saying that going to the weddings of her children was not seen as an urgent matter. Bothma confirmed that she had left the office of Louw not agreeing what constitutes an urgent matter. Louw had suggested the use of her personal capped leave but Bothma had rejected this suggestion. When Bothma left the office of Louw this matter had been unresolved for Bothma and she was not going to use her capped leave. It was agreed that Louw had never approved this leave. Bothma had a short discussion with Louw; they had disagreed and there was no way forward for Bothma. Botha agreed that she had asked Louw questions and thereafter they had not again spoken about this topic. Bothma left her leave application with Louw and had believed that he would revert to her although this never happened. Bothma never came back to Louw despite knowing there was disagreement over this application for special leave. Louw had attached a letter before sending the application to the Department in which he said such leave would be unpaid. It was put to Bothma that she took the three days leave without checking whether such leave was approved by Louw. Bothma disagreed that Louw had said that her leave had not been approved. Bothma explained that when she took the leave everything required of her by the school had been completed. It was agreed that there were still learners at the school on those dates and therefore there had been a need to have a teacher in the classroom. Bothma stated that she had not previously seen the letter from Louw on ER bundle page 2 in which her leave was declined and she was urged to take the matter on appeal to the Department or to take the leave as unpaid or as capped leave. Bothma explained that Louw had never said that her leave had not been approved as special leave and the alternatives available had also not been discussed. It was put to Bothma that Louw had said the leave needed to be taken as unpaid or from her capped leave. Further it was put to Bothma that she was aware there was no outcome on her leave application as she and Louw had disagreed about what had been urgent matters. Bothma said she had gone on leave as she was of the view that such leave had been approved. Referring to EE bundle page 4 Bothma agreed that she had lodged a grievance in this respect when the leave had been unpaid although she had never had a response to her grievance. Bothma was reminded that the grievance was sent to the wrong person and had been forwarded back to Louw. Bothma explained that she had to attend to the weddings. It was put to Bothma that ‘urgent’ meant immediate attendance to something and Bothma held this applied to her leave application. It was explained to Bothma that weddings were planned in advance and were not regarded as being urgent matters. Bothma explained that there were lots of things that had to be done that required her full attention over the three days leave she had taken – which were things that only she could do. It was put to Bothma that she had applied for this leave a month in advance and that therefore this could not have been urgent as it did not have to be done immediately. Bothma stated that she had been unaware of the circular sent out (EE bundle pages 21 and 22) the subject of which had been “implementation of leave without pay for employees (office and institution based educators and public service personnel”, even though this circular had been circulated to all educators. Referring to EE bundle page 20 in point H.11.6 it states that “an institution-based educator may during a scheduled working period be granted special leave to attend to an urgent private matter, the nature of which is such that it warrants such absence from work.” It was pointed out that the use of the word ‘may’ means there is no right for such leave to be granted. It was put to Bothma that the Department does not see weddings as urgent and in this matter Louw had followed a fair procedure. It was agreed that Louw had the right to decline this leave application and Bothma said he had never told her that the leave was declined.

8. In re-examination Bothma confirmed that on those dates there were only about six or seven learners still at school in her class. Bothma explained that at this time of the school year there were always learners who never returned to school. To keep those who returned busy they were arranged things like a picnic; sporting event and such like. Bothma confirmed that she was never told that her leave application had been declined. When Bothma handed in this application it was never indicated to her that a substitute teacher would be required. Bothma explained that it was her understanding that if she taken capped leave then she would have to have paid for the substitute teacher and further that the capped leave will then not get paid when she retired. Louw had approved the leave just not as special urgent matters leave. Bothma said that she was not responsible to check whether her leave had been approved. Bothma added that if any leave is turned down then the employer was obliged to give their reasons or justification for rejecting the leave.

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

9. Piero Louw (principal) testified that Bothma had applied for special leave urgent matters for three days before the wedding of her daughter. Louw told Bothma right away that weddings did not fall under such a leave category. Bothma had disagreed with Louw and had phoned the Department to check on him. Bothma then returned and left the leave application form on his desk. Louw had not granted this leave as the reason was not urgent. Bothma had capped leave and could go with unpaid leave for the three days as others at the school had done. Louw consistently applied the rule on urgent matters; applications had to be for an accident; the geyser burst and such like. Weddings in contrast were planned well in advance and Louw had explained this to Bothma. Louw told Bothma that the leave application had not been recommended by him but Bothma held the view that Louw was wrong. Louw never changed his mind from the original decision he communicated to Bothma that her leave was not approved. Bothma was aware that the leave would be unpaid and the policy at the school specifically excludes weddings for this type of leave. The leave form had been completed and discussed between them which was when Louw told Bothma that the leave was not approved as it was not urgent and therefore would have to be unpaid. The secretary at the school then enters the leave onto the system. Louw confirmed that ER bundle page 1 is the leave application form completed by Bothma for three full days leave as special leave for urgent matters. Louw had not approved this leave on 7 November 2022 and therefore the only option available was to take the days as unpaid leave. Bothma had left the form on his desk to which Louw had added the letter requesting unpaid leave which is how it was captured on the system. In February 2023 Bothma had shown Louw the pink slip for a salary deduction for the unpaid leave taken. Prior to that there had been no further discussions between them and Louw had already told Bothma that this type of leave was not granted as it had not been an urgent matter. When Bothma was upset with the pink slip Louw told her to go back to the lady who had assisted her with this leave. Bothma had taken the leave of three days in December 2022. ER bundle page 2 is the letter Louw wrote to accompany the application form in which on 7 November 2022 he had written that he cannot recommend this special leave as it was not an urgent matter. Louw explained that it was difficult at the year end to find a substitute teacher which was paid for by the school. Louw felt that the process followed had been transparent and fair. All educators are aware of the policy in this regard.

10. In cross-examination it was put to Louw that both of the children of Bothma were getting married and she needed that leave. Louw said that the school had an internal policy which Bothma was given a copy of when she had joined the school. The policy does stipulate exactly how urgent matters are defined and over the years all were aware of what falls under this category of leave which excludes something like weddings which are planned in advance. Louw had referred to the PAM documents although this is not defined there and also not defined specifically in the Department of Public Service Act. There is also no Collective Agreement on this subject. The Western Cape Education Department had sent out circulars which were discussed when they had circuit meetings as they had to understand the different types of leave. Head Office had done a presentation and it was crystal clear that the leave for which Bothma had applied was unpaid leave. There had been a few circulars on this subject and weddings were not regarded as urgent matters. Louw agreed that ‘urgent matters’ was not specifically defined anywhere and what had been discussed with Bothma was that her only option available was unpaid leave. It was agreed that Bothma had her own interpretation and that the school management team had a different interpretation of this type of leave. Louw confirmed that the School Governing Body (SGB) was responsible to set up policies at the school. It was put to Louw that it was his responsibility to advise on policies and the SGB had no authority over state matters. Louw stated that the decisions are made in consultation with the school management team. Louw had spoken to the circuit manager although he had not spoken to Head Office who had the final say. No-one at Head Office had corrected Louw once the leave application and letter was sent to them. It was put to Louw that he had never checked the policy with the Department of Education. Louw explained that Bothma was aware of the policy which had been consistently applied at the school for over thirty years. Bothma had applied for this special leave on 1 November 2022 which was more than one month in advance and therefore it had not been an urgent matter. It was put to Louw that he had one month to get a substitute teacher which in this case would have been needed. Louw explained that at the year end there had been no substitute teacher and therefore he had combined the smaller classes together. It was agreed that after Bothma handed in her application thereafter there had been no further discussions between them in this regard. Louw had not changed his original decision and he had already confirmed with Bothma in the first discussion that such leave had to be unpaid. Referring to ER bundle page 2 Louw agreed that he had never confirmed the letter he wrote on 7 November 2022 with Bothma as he had not changed his original decision regarding the leave having to be taken as unpaid leave. Therefore Bothma knew his decision. Louw had expected Bothma to confirm his response after talking to the Department but this had never happened. With reference to circular 0024/2017 (EE bundle page 21) regarding leave without pay Louw explained he never got any feedback from the Department and he stood by his original decision about which he had told Bothma. In clause 3.1 of this circular it states that it is the responsibility of the employer to inform their employees of its contents. Louw explained that he wrote the letter dated 7 November 2022 for unpaid leave and he never got any feedback from the Department who had deducted the days from the December 2022 salary of Bothma as had been expected plus explained. The school closed on 15 December 2022 and Louw never made sure that Bothma had understood his decisions or had given her any further feedback as he believed that she had already understood. Louw had urged Bothma to take his decision on appeal but she had never done this. Louw denied that he had ever said that Bothma would have to pay for a substitute teacher. It was put to Louw that it seemed it was okay for Bothma to be away and that Louw would deal with any consequences which arose. Louw explained that he understood the importance of the leave for Bothma.

12. In re-examination Louw confirmed that annual audits are done on how leave had been approved. The school budgeted for sick leave; maternity leave and they do not budget for this type of leave. Louw also confirmed that he had explained everything to Bothma when he had first received the leave application and his decision in this regard had never changed. Bothma did not come back to discuss anything that the Department may have told her about this leave.

13. Fabian Meintjies (assistant director – service benefits) testified that his department receives the leave application forms before they are captured on the Persal System. When any leave is not recommended notifications are attached thereto. A letter was issued to Bothma when her leave had not been approved and the finance department makes provision for the recovery of the money for the unpaid days. Louw had not recommended this special leave for Bothma which was then captured as unpaid leave. Louw had followed due process and attached an accompanying letter to the application form. Louw had followed the correct process in terms of the Departments’ processes.

14. In cross-examination Meintjies confirmed that he was familiar with the circular found on EE bundle page 21 regarding unpaid leave and that Louw had followed the correct process. Clause 3.1 of this circular states that: “Any leave application that is not recommended for approval must, as a matter of urgency, be submitted to the Department as soon as it becomes available, but not later than the prescribed fourteen days in the circulars mentioned above. It is the responsibility of the principal to inform the employee if leave is not recommended and the reasons for it….”). It was put to Meintjies that Louw had no further discussions with Bothma about her leave not being approved. It was explained that when an unforeseen incident occurs it requires immediate attention which is what that special leave covers. It was put to Meintjies that his interpretation was subjective and is not defined in PAM. Louw had the final say and the Department acts on that recommendation. Meintjies was not aware of the internal policy at the school and his department is purely administrative. Referring to ER bundle page 4 Meintjies confirmed that his department wrote a letter to Bothma dated 15 November 2022 as had the finance department shortly thereafter. The deduction for the unpaid leave had been recovered from the December 2022 salary of Bothma. Meintjies could not explain why Botha claimed she had not received these letters. There was nothing added in re-examination.

15. It was agreed that both parties would send me their closing arguments by no later than 17h00 on 5 June 2023.
Both parties submitted closing arguments the contents of which have been noted.





ANALYSIS OF THE EVIDENCE AND ARGUMENT

16. The precise circumstances under which special leave for urgent matters may be granted is not defined specifically in PAM or other legislative provisions. The definition for urgent private matters is loosely defined, according to PAM, and Resolution 1/2001 as the following: “an institutional based educator may, during a scheduled working period, be granted special leave to attend to an urgent private matter, the nature of which is such that it warrants such educators’ absence from work”. The meaning of the word ‘urgent’ is listed in the Oxford dictionary as: calling for immediate attention; pressing; urgent appeals; an urgent need; conveying a sense of urgency; urging insistently and importunate. This breaks down the common sense meaning of the word ‘urgent’. The word ‘may’ as used in PAM infers a discretion on whether such leave is granted or not and it cannot therefore be seen as an absolute right.

17. Weddings traditionally follow a process of two people meeting each other, falling in love; getting engaged and then they get married. Each part of the process takes a period of time that the two people are comfortable with before committing themselves to matrimonial vows before God or tying the proverbial knot. There are no set time periods over which such processes take place and it is up to the couple themselves to set such pace. The pre-wedding phase admittedly takes time as the day for the couple is supposed to be stupendous (extremely impressive.) There is much to do such as the wedding invites, the church or venue where the wedding would be held; the minister or person with a marriage license; the reception; the décor; the wedding attire; and the list keeps getting longer. It is acknowledged and accepted that being the only family member located in Cape Town much of the arrangements were left to Bothma especially those last minute things that only she could do. Logistically it was very brave of Bothma to deal with the marriage of her son and daughter one week apart. That was a conscious choice she made and accepted. Everything for Bothma became urgent and important to all involved in both weddings. Bothma is congratulated that she managed to pull this off.

18. I am guided by the legal provisions for all types of leave such as annual leave (school holidays); sick leave; family responsibility leave (which is very specifically defined); maternity leave; paternity leave all of which have limited time periods on full pay and are clearly defined at law mostly universally in South Africa. When the type of leave to be taken does not fall into anyone of the above categories it is generally unpaid leave. The school may give special paid leave for urgent matters and a good example is that when the geyser at your home bursts – that needs urgent, immediate attention and is something for which could not have been foreseen. Weddings are not something that happens which is unforeseen and hence leave for such like are not budgeted for by the school and would be an exception rather than the rule. Weddings could be planned in such a manner that they fall within a school holiday or a period of annual leave. Therefore weddings fall outside of the category of special ‘urgent matters’ leave.

19. Louw never faltered from his original decision communicated to Bothma that weddings did not fall under this category of leave and for him that was the end of the discussion. The leave could be taken only if it was unpaid leave as wedding preparations never fell into this leave category. Bothma had disagreed with Louw in this regard and made contact with a ‘person’ from the Department who was unidentified and it was not established that this person was an authority in regards to the questions asked of her by Bothma. Bothma failed to discuss with Louw whatever she had been told by this person at the Department. Bothma made the mistake of not returning to Louw to further discuss what she had found out with the Department – at a time when Louw had already given her his decision not to approve such leave application and that as Bothma did not wish to use her capped leave then such leave would be unpaid. The decision made by Louw was reasonable and consistently applied as weddings were not regarded nor ever could be regarded as urgent matters. In the circumstances I find on a balance of probabilities that the decision made by Louw was the correct decision and there is no substantive unfairness in this regard.

20. Louw received the special leave urgent matters application form from Bothma and immediately had correctly said that such leave would not be approved. As Bothma had said she did not wish to use her capped leave the only option available to Bothma was to take unpaid leave. Louw correctly processed the leave application as not being approved and added the letter dated 7 November 2022 for the three days to be unpaid. Letters in regard to the unpaid leave were sent to Bothma who only received the pink slip when she returned to work in 2023. The letters were correctly sent to Bothma by the Service Benefits and finance departments and the value of the three days leave taken were recovered correctly from the December 2022 salary of Bothma. The process followed was correct in every way and had been transparent even though Bothma may not have seen all the letters being generated in this regard and had failed to take notice that her special leave for urgent matters had not been approved already in the first discussion Bothma had with Louw in this regard. On a balance of probabilities I find that Bothma failed to see the wood for the trees which clouded her judgement when she failed to revert to Louw with any information which may have changed his mind. The recommendation of Louw was accepted by the Department – Service benefits as it complied with their practice and procedure. There was no procedural unfairness in this regard.

21. Bothma submitted a grievance in 2023 regarding her not being given special urgent matters leave which given what I have found above would not have changed the outcome. However, it was incumbent on the Department to have followed through their own grievance procedure to finality which they failed to do.

21. Section 186(2) of the Labour Relations Act (LRA) defines “Unfair labour Practice” as “any unfair act or omission that arises between an employer and an employee involving – (i) unfair conduct by the employer relating to the promotion, demotion, probation (excluding dismissals of probationers) or training of an employee or relating to the provision of benefits to an employee); (ii) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (iii) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (iv) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 on account of the employee having made a protected disclosure defined in that Act.” This dispute falls under the provision of a benefit that is the special leave for urgent matters. It is clear that the employer retains discretion when considering whether or not to recommend such leave to an employee. In this instance the reason for not approving the application was because it did not fall under the definition of an urgent matter; therefore that application from Bothma was never approved and the only other option at the choice of Bothma was to take the three days as unpaid leave. This axiomatically led to the deduction of the value of the three days from her December 2022 salary.

AWARD

22. SAOU obo Renė Bothma have failed to prove on a balance of probabilities that the employer committed an unfair labour practice when the application for special leave urgent matters was not approved; treated as unpaid leave and the value of which had been recovered from the December 2022 salary of Bothma. Consequently this case is dismissed.


Gail McEwan
COMMISSIONER