ELRC865-22/23WC

Panelist : Alta Reynolds

Case Number : ELRC865-22/23WC

Date of Award : 19 June 2023

In the ARBITRATION between:

SAOU obo Tatum-Rae Williams
(Union/Applicant)

and

Western Cape Education Department
(Respondent)


DETAILS OF HEARING AND REPRESENTATION

1. The matter was set down by the Education Labour Relations Council (ELRC) as an alleged unfair labour practice relating to benefits referred in terms of section 186 (2)(a) of the Labour Relations Act 66 of 1995 as amended (the LRA) and was conducted virtually via Zoom video conferencing over two sittings on 11 April 2023 and 24 May 2023.

2. Present for the referring employee (the Applicant) were Mr Rudolf Baard (SAOU Full-Time Shop Steward as Representative) and Ms Tatum-Rae Williams (the Applicant). Present for the employer, the Western Cape Education Department (the Respondent), was Mr Frederick Scholtz (Senior Labour Relations Officer as Representative).

3. The proceedings were conducted in English and Afrikaans with Zoom, digital and electronic recordings made, with the Panelist’s electronic record serving as the English translation.

4. No explanation of the arbitration proceedings was required by the parties.

No preliminary issues required to be addressed.

5. Written closing arguments were requested and agreed to at the last sitting of the arbitration. It was agreed by both parties that they would submit their closing arguments simultaneously to the ELRC’s Case Management Officer and copied to one another and the Panelist via e-mail by 5 June 2023.

6. The ELRC was requested to amend the award due date accordingly on the case management system. The Respondent’s written closing arguments were received on 5 June 2023 and the Applicant’s written closing arguments were received on 6 June 2023.

ISSUE TO BE DECIDED

7. The purpose of this arbitration is to determine whether the Respondent had committed an unfair labour practice relating to benefits in terms of section 186 (2)(a) of the LRA by not granting and paying the Applicant two days’ sick leave for 18 and 19 August 2022. The relief sought by the Applicant is to be reimbursed the R1596.55 that was deducted from her earnings during November 2022 in respect of two days’ paid sick leave not approved for 18 and 19 August 2022. It was confirmed that the onus of proof would be on the Applicant in this matter.

BACKGROUND TO THE DISPUTE

The following facts were established as common cause

8. The Applicant is employed at St Michaels Primary School in Abbotsdale, Western Cape as a post level 1 Educator with Persal number 56609116. She commenced employment with the Respondent in January 2017. She applied for sick leave for 18 and 19 August 2022 with a supporting medical certificate issued on 17 August 2022 by Dr W M van Niekerk in Malmesbury, which stated that the Applicant was suffering from a medical condition. The Applicant was absent on 18 and 19 august 2022. The School Principal did not recommend that the sick leave be granted and an amount of R1596.55 was deducted as unpaid leave from the Applicant’s earnings during November 2022. The Applicant lodged a grievance relating to this deduction on 15 December 2022, which grievance was unresolved. The Applicant referred a dispute to the ELRC on 14 December 2022, which remained unresolved on 24 February 2023. The dispute was subsequently referred to arbitration on 2 March 2023.

The following facts were in dispute:

9. Whether the Applicant was still ill on 18 and 19 August 2022 after she was already sick on 16 August 2022.

10. Whether the Applicant gave notice on 16 August 2022 to the Principal that she was going to take the two days off on 18 and 19 August 2022 for registering in person for her studies at the Unisa campus in Cape Town and to complete Unisa tasks.

11. Whether the Applicant was dishonest by applying for sick leave to attend to her personal matters.

12. Whether the Principal’s reasons for not recommending the sick leave were fair in the circumstances.

13. Whether the Respondent took the Principal’s word surrounding the incident on what transpired between her and the Applicant on 16 August 2022.

SURVEY OF EVIDENCE AND ARGUMENT

14. Ms Tatum-Rae Williams, the Applicant, testified under oath for the Applicant party.

15. Ms Rhonda Peters, Principal of St Michaels Primary School and Mr Cyril Hector, Assistant Director Service Benefits, testified under oath for the Respondent.

16. Both parties handed in bundles of documents at the first sitting on 11 April 2023, which were admitted. The Respondent introduced additional documents at the sitting on 24 May 2023, with the Standard Operating Procedure (SOP) that was included in these documents disputed by the Applicant party.

17. Only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant. Detail is provided, were relevant. Witnesses’ evidence in chief, under cross-examination and re-examination are summarised separately to assist with the evaluation of their evidence.


THE APPLICANT’S EVIDENCE

18. The Applicant party’s case was that the Applicant was unfairly prejudiced when the Respondent firstly failed to grant sick leave which was requested for 18 and 19 August 2022 and did not give reasons for refusing the leave. The Respondent secondly failed to consult with the Applicant before granting leave without pay, which the Applicant only found out about in December 2022 when there was a deduction against her salary in November 2022. She lodged a grievance which was not resolved, after which a dispute was filed with the ELRC. The relief sought by the Applicant is that the sick leave application be granted and that she be reimbursed the amount of R1596.55 that was deducted from her salary.

19. Ms Tatum-Rae Williams, the Applicant, testified as follows under oath in her evidence in chief: On 17 August 2022 she went to the doctor after school as she was not feeling well. The doctor booked her off for the next two days of 18 and 19 August 2022. She had already visited the doctor on 12 August 2022, which was a Friday, and was diagnosed with a throat infection. She stayed at home the Saturday and Sunday. She felt better and went to school as normal Monday 15 August 2022. The certificate of 12 August 2022 was issued on 30 January 2023 since she wanted to obtain proof that she was already sick before 18 and 19 August 2022. The school was not aware that she was sick before the 18th and 19th but the Principal should have seen and heard on the 16th from her voice due to the throat infection that something was not right. She had completed the sick leave application form on 17 August 2022 but did not see it again afterwards with the Principal’s recommendation on it and this was the first time at the arbitration that she saw it. The Principal did not call her in again after she submitted the sick leave application on 20 August 2022. This was also the first time that she saw the letter from the Head of Education dated 21 October 2022 addressed to her at the school, in which she was informed that her application for leave for the period 18 August 2022 to 19 August 2022 had not been recommended by her principal/supervisor and that her absence will be covered by leave without pay. This letter did not provide a reason why the Principal did not recommend the leave. She would definitely have lodged a grievance within the five days provided for in that letter if she had received it. She however did lodge a grievance later on 15 December 2022 after the deduction was made from her November 2022 salary.

20. She explained what happened in her meeting with the Principal on 16 August 2022. She did ask for two days’ leave to register at Unisa and to sort out assignments as she thought she could use special leave and the Principal had said no. The reason the Principal said no is because she said who is going to supervise the children and she said to the Principal she understands and left it at that. On 17 August 2022 she did not feel well and decided to go to the doctor after school, who said she must look after herself and booked her off for two days to complete the antibiotics and to rest so that she could not get a relapse again. There was no minute of the meeting between her and the Principal on 16 August 2022 and there was nobody else present. She was ill on 18 and 19 August 2022 and went to rest and did not get to Unisa or do other things as she felt too bad. She felt very hurt about the Respondent refusing her sick leave since she took so little sick leave. The Respondent also did not contact her before deducting the money. She did not know her sick leave would be refused and accepted it would be granted as normal until she saw on 14 December 2022 the payslip with the deduction made in November 2022. The Principal had not acted in terms of paragraph 3.1 of Circular 0024/2017 Implementation of leave without pay for employees (office- and institution- based educators and public service personnel) issued by the Head of Education on 11 July 2017 (the Circular) after she put in her sick leave application. Paragraph 3.3 of the Circular did no apply to her and the Respondent had not issued to her the two letters referred to in paragraph 3.6 of the Circular when her leave application was rejected. She did not submit any other leave forms based on the meeting of 16 August 2022 and did not know that she was going to be sick. She was not dishonest and went to the doctor as she was feeling ill and the doctor told her to rest for two days at home, hence she was not dishonest in this regard since she did what the doctor told her to do.

21. Ms Williams testified as follows under cross-examination: She and the Principal did not have the type of relationship that she could tell the Principal on 16 August 2022 that she was not feeling well. She agreed that she did not tell the Principal during their discussion on 16 August 2022 that she was not feeling well. The main reason she went to see the Principal on 16 August 2022 was because she wanted to ask for special leave to register at Unisa and to finish a few tasks (assignments) relating to her studies. The Principal said she would not allow it but that she, the Applicant, could leave early and she then left it like that. The Principal had not told or asked her to register on line. If the Principal had allowed her to leave early to register in Cape Town it would be too late since it would take a while to drive to Cape Town. She did not remember saying about the lines at Unisa campus being too long, but that it would not work to leave school early as the process to get there will take too long. The Principal had told her that there was no leave to register at Unisa and that she must complete her Unisa assignments after hours in her own time.

22. She never said to the Principal in their meeting that she will go to the doctor to get booked off on 18 and 19 August 2022 if she did not get the leave she asked for, but felt bad and went to the doctor. She did not hand in the leave application and the medical certificate at the school on 17 August 2022 after she went to see the doctor but sent it via e-mail to the School Secretary. The word dishonest was never used in the discussion with the Principal. She did what the doctor had recommended and stayed at home and rested. If the Principal had showed an interest in her and asked how she was feeling she would have told the Principal, but it never came from the Principal’s side. As to how she got along with the Principal, she responded that they got along and she did all the work the Principal requested from her and she, the Applicant, was the type of person that did what she must do. She agreed that the Principal of the school has the authority to approve or disapprove leave. When she returned from the sick leave she did not tell the Principal that she did not register at Unisa for studies, but assumed that the Principal had her sick leave application with the proof that she was sick and that she could not have done that.

23. Ms Williams testified as follows under re-examination: As to who makes the final decision to approve leave or not, she would say that based on the letters that are sent it would be the Respondent’s decision. When the Principal made such a recommendation (of that it should be leave without pay) she could not reject the application without valid reasons and must first get proof that she was at Unisa to register and had completed Unisa assignments. When the Principal had informed her that there was no such thing as special leave to go to Unisa the Principal did not explain to her that there was leave for private matters. Since the discussion with the Principal on 16 August 2022 was about eight months ago she could not remember exactly what happened in that meeting as so much had happened in the meantime. She confirmed that the Principal never handed in a written version of their discussion on 16 August 2022.

THE RESPONDENTS’ EVIDENCE

24. The Respondent’s case was that the Applicant approached the School Principal on16 August 2022 requesting to take leave for two days because she wanted to register for her studies with Unisa at the Parow campus. The reason she gave why she needed the leave was because of the long queues. The Applicant had told the Principal that she could not register on line and as a compromise the Principal suggested that the Applicant first come to school the morning of 18 August 2022 when registration had to take place so that the learners are not left unsupervised the whole day. The Applicant also told the Principal that she needed to take 19 August 2022 off to complete her Unisa assignments. The Principal had responded that the Applicant would have to take unpaid leave for the two days because the reason given was insufficient. The Applicant had then responded to the Principal that she would be taking sick leave if the Principal did not approve her leave request. When the Principal received the two days’ sick leave booked off by the doctor the Principal used her discretion and did not recommend the sick leave since to her knowledge the Applicant was using the two days to register at Unisa and complete her assignment, also that the Applicant had been dishonest in doing so. The Respondent informed the Applicant on 21 October 2022 that it received the leave application which was not recommended by the Principal and that a deduction will be made in November 2022 for the two days. The Applicant challenged this, lodged a grievance and resulted in the dispute being referred to the ELRC because the Respondent could not adhere to her request and that she could not justify her own illness to receive paid leave. A circular was also sent out regarding unpaid leave to all office based educators and public servants. They were of the view that due process was followed, to which the Respondent’s two witnesses would testify to.

25. Ms Rhona Peters, the Principal of St Michaels Primary School, testified as follows in her evidence in chief: She had been Principal at the school for ten years. The Applicant has been with the school for about seven years and teaches Foundation Phase Grade 2. She had a professional relationship with the staff and they just work and talk when they need to talk and they were not friends, even with the Applicant. She checked and was sure that she did not get any documentation about the Applicant having contracted a throat infection and having gone to see the doctor on 12 August 2022 and that she was sick on that date. She had helped out in Mr van der Westhuizen’s Natural Science class on 16 August 2022 and was not in her office but busy marking books in that class when the Applicant came to visit her on that day. The Applicant had explained that she wanted leave on 18 and 19 August 2022 with the reason that she wanted to register at Unisa on the 18th and to complete her private study tasks for Unisa on the 19th. She had responded to the Applicant that she must come to school on the 18th since the Foundation Phase Educators were absent a lot. The Applicant had responded that she had battled to go online to register with Unisa and that the rows to register were too long. She had said to the Applicant that if the lines are long and if she went at 10h00 the lines would not be so long, but she insisted that the lines are too long. The Applicant then asked to take off the 19th to complete her Unisa tasks. She had told the Applicant it was not study leave and she could not complete her tasks during school time, which had to be completed after hours. She also told the Applicant that if she takes those days off it will be unpaid leave and that she wanted to accommodate her to come to work that day. The Applicant had immediately responded that she was honest enough as to why she wanted to take the 18th and 19th off for and that she does not do what other Educators do by saying they are off sick. She told the Applicant if she went off she would not approve the time off and the Applicant then said she will go to the doctor and the two days will be paid leave. When the Applicant said that she told her that if she did that she would not approve the leave as she now knew what the Applicant wanted the two days off for and it would be fraud if she approved that leave. She was referred to the Applicant’s Application for Leave of Absence form dated 17 August 2022 in the bundle of documents. She did not receive it personally from the Applicant and the Secretary gave it to her before the school closed on 17 August 2022, with the form already signed on 17 August 2022. She only received the leave form then, with no medical certificate attached. The Secretary gave her the medical certificate issued by Dr van Niekerk on 18 August 2022. She had on 26 August 2022 ticked off the column Not Recommended and had written under remarks if not recommended (translated from Afrikaans) educator had admitted to the principal on 16 August 2022 that she wants to register for studies on the 18th August and 19th August for doing tasks. When she made the recommendation she already had the medical certificate as supplied by the doctor.

26. As to why when a valid medical certificate was handed in she did not recommend payment for the two days, it was because the Applicant had already told her on the 16th that she will go to the doctor to be booked off on 18 and 19 August 2022. She had arranged for somebody to supervise the Applicant’s class while the Applicant was off. She did not question the medical certificate when she received it but the reason was because the Applicant had said she will go to the doctor to get paid sick leave for the two days. The Applicant never came back to her and told her that she was sick and was never at Unisa. The Applicant already knew on 16 August 2022 that she will not be paid if she goes to the doctor to get paid leave. She had considered the audi alteram partem rule before she did not approve the Applicant’s leave and although she was not against the medical certificate, she stayed with her decision that the Applicant had already told her on the 16th why she wanted the leave and would rather go to the doctor to get paid leave. She had no knowledge of the letter of 21 October 2022 from the Head of Education addressed to the Applicant care of the school and whether it was received by the school. She also did not receive a final letter from the Finance Department that the money will be recovered from the Applicant. There was no discussion with the Applicant from August 2022 until the Applicant became aware of the deduction in December 2022. She confirmed that the Principal of the school has the authority to recommend leave or not and that it must be based on valid reasons. Her valid reasons were that the Applicant on the 16th did not say she had an appointment with the doctor as she was sick but gave the reasons of registering and Unisa and to finish tasks. She did not notice on the 16th that the Applicant was sick with a throat infection since she appeared normal to her.

27. Ms Peters testified as follows under cross-examination: As to whose version of what happened on 16 August 2022 was the truth, she had nothing to hide and what she said was the truth. She did take a minute of the meeting on 16 August 2022 as to the correct truth and had submitted the minute to the Respondent’s Representative. It was noted that the minute was not contained in the Respondent’s bundle of documents. She could not agree that because the minute is not available that it would be difficult to verify the truth. She was not aware that the Applicant had around 21h00 the evening of 17 August 2022 e-mailed the sick leave application and medical certificate to the Secretary since she was not copied in on the e-mail and only received the medical certificate on 18 August 2022 when the Secretary places all the leave forms for the week on her table. She did not receive anything on line and received the leave form from the secretary on the 17th and the medical certificate from the secretary on the 18th. She sent the application form away the moment she signed it and after the medical certificate was received. It was not her assumption that the Applicant was not sick on 18th and 19th because of what they had discussed previously and it was based on what the Applicant had said to her that she will go to the doctor to get paid leave. She did not doubt that the Applicant was sick and had been to the doctor as the sick letter said that she was at the doctor. She responded to the version that there is a very strong possibility that the Applicant was sick on the 17th, did go to the doctor and was booked off for the 18th and 19th, that this could be the case, but the Applicant did not say on the 16th that she was sick but had already said that she will get the doctor to book her off sick. As to the contradiction that she did not doubt the doctor’s medical certificate and at the same time did not accept it as the truth to recommend the sick leave, she responded that she was not fighting about the sick letter and the doctor’s diagnosis, but that on the 16th the Applicant asked for the two days off and that if it is unpaid she will put in sick leave.

28. As to whether it was the duty of the principal and not the educator to ensure that education is delivered during his/her absence it was in the PAM document that if an educator is absent he/she must plan for the learners. If an educator is absent there are assistants and the assistant takes over. She as well as the HOD also oversee classes during educators’ absences. She was referred to the clauses in the Circular relating to the rules for unpaid leave and was taken through the provisions, to which she agreed she had complied with, except for clause 3.1 which states that it is the responsibility of the principal to inform the employee if leave is not recommended and the reasons for it, that she had already communicated to the Applicant on the 16th that she will not get paid leave. This communication was not in writing at the time. She had said to the Applicant she could take time off early at 10h00 but only to register at Unisa and not for the tasks. To register at Unisa was not regarded as leave for private or urgent business since she could do this on line. She was referred to the categories of leave provided for on the application for leave of absence form and that there is a category for periods covering part or fractions of a day and explained that there is a difference between time off and leave in that educators will ask for time off and then sign out and in, which is recorded in a book. She responded to the version that she as a result of her confusion did not advise the Applicant correctly that she can attend to urgent private time, that she had not advised the Applicant incorrectly and had explained to the Applicant on the 16th why she will not give that leave day as Unisa is on line and doing tasks at home is not study leave.

29. Ms Peters testified as follows under re-examination: She was not sure of the name of the assistant who stood in for the Applicant when she went on leave for the two days as it was a long time ago and there were a number of assistants. At the time when she took the decision to recommend leave without pay as principal of the school she regarded it as fair because she had spelt out to the Applicant on the 16th that the Applicant could register on line on the 18th and that the 19th is not study leave and the Applicant had said if she did not approve the leave that she will go to the doctor to be booked off medically and get approved leave.

30. Mr Cyril Hector, Assistant Director Service Benefits, testified as follows under oath in his evidence in chief: He explained that his role is to deal with educators and public servants in the West Coast District. He has occupied the post of Assistant Director for 15 to 16 years. He is responsible for a team of seven people. Their teams are multifunctional teams that deal with appointments till exit, pension, leave, long service recognition, recognition of qualifications, etc. He was referred to an e-mail from the Applicant’s NAPTOSA Represenative sent to him on 24 January 2023 regarding the grievance that the Applicant had lodged regarding her leave application which was not approved and asked him to give more clarity about the non-recommendation of the leave form by the Principal. His feedback to the Applicant’s Representative of 25 January 2023 and further correspondence between them up to 31 January 2023 was read out for the record. With respect to the enquiry about a grievance meeting there was no such meeting held with NAPTOSA at that stage and the Representative was in other correspondence informed that the process must be followed through the Principal. He was referred to the Applicant’s leave application form, the medical certificate and the Principal’s recommendation and confirmed their contents, the detail of which is not repeated again. He explained what his office does with a leave form with such a recommendation in which a principal did not approve the leave. The Standard Operating Procedure (SOP) with regards to the capturing and implementing of leave without pay (LWP) on Persal would then apply, which is an interim document drafted between two Directorates, being Service Benefits and Finance. When his Directorate captures the unpaid leave on the Persal system they send a letter informing the person that unpaid leave was granted and also send an advice to Finance Department to capture it as unpaid leave so that a debt is created. The objective of this SOP was read out as being to standardise and capture the roles and responsibilities of all role-playes in the Leave Without Pay (LWP) process. He was also referred to the Circular and read out the summary, which was to inform managers/supervisors and principals of the new procedure regarding the implementation of leave without pay He also read out paragraph 3.1 of the Circular. He had in his correspondence with the Applicant’s Representative stated that the audi alteram partem rule had applied, which was based on this Circular and which confirmed that the employee was informed by the Principal that she did not recommend the leave and the reasons for it, hence the Applicant was exactly aware of what the Principal was going to recommend. According to the Respondent the Principal had followed due process in terms of paragraph 3.1 of the Circular.

31. Every employee had the right to apply for leave, but in this case it was different if they looked at what happened in the meeting between the Applicant and the Principal on 16 August 2022, which was based on a summary of the correspondence and feedback received from the Principal, which is noted was not supplied with the bundles of documents. When the office received a medical certificate like the one issued to the Applicant on 17 August 2022 in which a diagnosis of a medical condition is stated it meant that the patient did not give consent that the nature of the medical illness be stated on the certificate. When they received an application that is not recommended by a principal or supervisor with reasons why the leave is not to be implemented they will abide by the principal’s decision and process the leave accordingly.

32. Mr Hector testified as follows under cross-examination: He explained how he obtained the information that the Principal had said to the Applicant that she could leave the school early at 10h00 to register at Unisa. In the NAPTOSA Representative’s correspondence to him it was mentioned that the Applicant was not given the opportunity to state her side of the case. Before he responded to that e-mail he sent an e-mail to the Principal and explained to her an arbitration was on the way and that he wanted to hear from her side what happened on 16 August 2022. The Principal had responded to him on 27 January 2023 and sent him a document and attendance register of a meeting between her and the Applicant, of which he noted only the attendance register was contained in the bundle of documents tabled at the arbitration. He agreed that the SOP referred to did not state who the author is and is also not signed off. It is not a policy but a procedure between the Directorates Service Benefits and Finance. He conceded that the document was outdated and a few adjustments needed to be made on this internal SOP.

33. The letter from the Directorate: Service Benefits addressed to the Applicant dated 21 October 2022 was signed by the Human Resources Officer Ms Elize Anyster on behalf of the Head of Education since in their SOP they indicated that the Human Resources Officer (HRO) will sign the letter. It was correct that the letter had a paragraph in bold that the employee has the chance to lodge a grievance within 5 working days of receipt of the letter. As to how the Applicant can lodge a grievance if she does not receive the letter, he responded that she must prove that she did not receive the letter. The letter was sent to the school and copied to the Principal. He could not provide evidence to contradict the Applicant’s evidence that she never received the letter form Service Benefits that leave was not granted as he could not prove that she did not receive the letter. He agreed that the proper procedure was not followed if the Principal did not hand over the letter to the Applicant. He also agreed that the Principal then did not consult the Applicant and informed her that leave without pay will be implemented. It was something new to him that the Applicant did not receive that letter. He responded to the version that the Respondent as the employer did not follow proper procedures to make sure that the Applicant was aware that LWP would apply, from their perspective from the outside the procedures were followed and were fair and the Applicant was informed, except that it is unfortunately now said that the Applicant did not receive the letter. He was aware that the Respondent as the employer can be held vicariously liable for anything the Principal does as their representative, which includes not following the procedure to inform the Applicant. The attendance register for the meeting of 16 August 2022 between the Applicant and the Principal did not inform what the meeting was about, but only that there was a meeting between the two of them om 16 August 2022. The minutes that the Principal sent him and were not included in the documents did not have the Applicant’s signature on it. He did not see anything wrong for the Applicant to see a doctor the afternoon of 17th who recommended she stay at home for two days, as he thought it is everybody’s right to apply for sick leave. Under normal circumstances there is nothing wrong with the application for sick leave but there were many question marks around the leave form and the manner it was done based on the discussion of 16 August 2022.

34. The only attempt that was made to inform the Applicant that her leave was not apoproved was the letter of 21 October 2022. The only indication that the Respondent had that the Principal’s recommendation was shared with the Applicant was on the leave application form, which is why they went back to the Principal to ask what happened. As to whether the Applicant received a copy of the leave application after it was signed by the Principal, there was no proof that the leave form was given back to the Applicant to say this is my recommendation. What makes this case unique is that there was already a discussion on 16 August 2022 and the assumption was that the Applicant was already informed on 16 August 2022 what the recommendation of the Principal will be, which is why it was not necessary to give it back to the Applicant. In normal cirucsmtances the onus vests on the Principal to inform the employee of the recommendation, which is what the Circular also spells out.

35. In terms of paragraph 3.6 of the Circular he agreed that the Applicant was to receive two letters, one from Service Benefits and another from Financial Accounting. No supporting evidence was submitted other than the Principal’s version of what was discussed in the meeting of 16 August 2022. The Applicant is allowed time off to attend to events such as registering with Unisa as the new leave form makes provision for an employee to use a fraction of a day for time off. The Principal could have allowed the Applicant to leave early and ulitise a fraction of a day since it was common practice. When the Applicant came to the Principal to take time off to go to Unisa it could have fallen under urgent time off for private matters. Special leave was granted under extraordinary circumstances such as study leave, while family responsibility leave is in the case of family illness, death and urgent private matters. He agreed that the Principal is in a position to guide the Applicant on the category of leave that can be utilised and that the Principal could have advised that the Applicant could apply for leave for urgent private matters. As to whether the Principal acted within the prescripts of the Respondent when she demanded the Applicant to find her own replacement, he responded that the educators are not encouraged to find their own replacements. He agreed that the Principal cannot take delegated power and delegate it further down, but he supposed the Principal had reasons for doing that as it was short notice for the Principal to get a replacement. It was not fair to ask an employee who was absent from work and on sick leave to get a replacement. He agreed that it is not allowed that a Principal allows an assistant to take over the Applicant’s class without a qualified educator being present. Cross-examination surrounding the Principal’s competency and other topics already dealt with are not repeated here for the sake of brevity. The Respondent had no proof that the Applicant went to Unisa on 18 August 2022 to register and that she had submitted tasks to Unisa on 19 August 2022.

36. Mr Hector testified as follows under re-examination: It was not standard practice that the Principal after she decided on 26 August 2022 to not recommend the Applicant’s leave had to return the leave form to the Applicant. He could no deny or confirm the competency of the Principal, with his view that when a principal is appointed that candidate adheres to the conditions or requirements of that particular post.

CLOSING ARGUMENT

37. Written closing arguments were presented by the parties as agreed to at the conclusion of the arbitration. These closing arguments are not repeated here, but have been summarised under Analysis of Evidence and Argument and taken into account in arriving at the award.

ANALYSIS OF EVIDENCE AND ARGUMENT

38. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the Respondent, the Western Cape Education Department, had committed an unfair labour practice relating to benefits by not granting and paying the Applicant, Ms Tatum-Rae Williams, two days’ sick leave for 18 and 19 August 2022 and deducting R1596.55 from her earnings during November 2022 for the two days’ sick leave which was not approved. It was confirmed that the onus of proof would be on the Applicant in this matter.

39. The relevant provisions in terms of section 186 (2)(a) of the LRA are the following:

(2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;

40. The Applicant party’s version and arguments in closing are summarised as follows: The Applicant had discovered on 14 December 2022 from her payslips that the amount of R1596.55 (not R1596.66) was deducted from her salary in November 2022 without her knowledge or consent and later established that this was as a result of what the Respondent viewed as an overpayment due to the implementation of Leave Without Pay (LWP) after her application for sick leave for 18 and 19 August 2022 was declined. The delegated authority to grant or decline any leave application lies with the Respondent alone and the Principal may only make a recommendation, hence the omission to grant leave occurred at the Departmental level.

41. With respect to substantive fairness the Respondent had committed an unfair labour practice by declining the Applicant’s application for sick leave without considering all the material facts, such as that the Respondent had accepted the Principal’s version regarding the discussion with the Applicant on 16 August 2022 in which the Respondent claimed that the Applicant gave notice to the Principal that she was going to take the two days off to register in person at the Unisa campus in Cape Town and to complete tasks for Unisa, that the Respondent ignored the medical certificate even though its legitimacy was not disputed, that the Applicant was indeed ill on 18 and 19 August 2022 after she already became ill on 16 August 2022, and that the Respondent through their actions allowed the Principal to decide whether or not to grant or decline an application for leave.

42. With respect to procedural fairness the Respondent had committed an unfair labour practice by declining her application for paid sick leave in that the Respondent failed to properly consult with the Applicant regarding the alleged overpayment and failed to inform her that they would deduct the money from her salary before doing so, and without her consent. The evidence of the witnesses was also referred to, with the following aspects highlighted: The Applicant in her evidence stated she was already sick on 12 August 2022 when she went to see the doctor. The Applicant had asked the Principal on 16 August 2022 for special leave on 18 August 2022 to register at Unisa because the lines were too long and she was struggling to register online, as well as on 19 August 2022 to finish outstanding tasks for her course. She explained why the option suggested by the Principal that she rather come in and leave at 10h00 to go to Unisa was not feasible. She denied that when the Principal informed her that special leave could not be recommended for this purpose, that she had told the Principal that she would apply instead for sick leave, which was not seriously challenged by the Respondent. She had conceded that she had signed the attendance register for the meeting on 16 August 2022, but never agreed to the Principal’s version of what was discussed, nor were any minutes of the meeting presented or signed. She started feeling ill again on 17 August 2022 and went to the doctor after school, with the Respondent never disputing the validity or integrity of the doctor’s medical expertise, nor the recommendation on the medical certificate. The Applicant furthermore never received nor saw any letters from the Respondent to inform her that her application was declined and Leave Without Pay (LWP) would be implemented.

43. The Applicant party pointed out with respect to the Principal, Ms Peters’ evidence, that the Applicant had requested special leave for her Unisa business, but never submitted such an application since the Principal would not recommend it. The Principal failed to prove that the Applicant in their discussion of 16 August 2022 had stated that she would instead give notice for paid sick leave and that she had been dishonest in doing so, since the Applicant was already ill and never attended to any personal matters regarding her initial request for special leave. The Principal had also expected the Applicant to arrange a substitute if she took time off, which was not the duty of the Applicant as Post Level 1 Educator, but that of the Principal, who allowed an assistant to supervise the class, which was not allowed.

44. With respect to Mr Hector, he confirmed in his evidence that the Respondent makes the final approval to grant or decline a leave application and that the Principal may only make a recommendation and also conceded that if necessary the Respondent may put aside the recommendation of the Principal and implement leave as it sees fit. He testified that the Principal followed due process, which was disputed under cross-examination, since the Principal had testified that she never informed the Applicant that she would not recommend her application for sick leave after it was submitted. He could also not deny nor confirm that the Applicant received any of the two letters that the Respondent allegedly sent to her concerning the LWP.

45. The Applicant party concluded that the Applicant had reasonably expected her application for paid sick leave to be granted and had followed the correct process by informing the Respondent that she would be absent and submitting an application for sick leave and a valid medical certificate and had proved that her application to take sick leave was legitimate and reasonable given the circumstances. The Principal could also not justify her recommendation as she had no proof to substantiate her claim that the Applicant was dishonest when she applied for sick leave. The Principal could furthermore not advise the Applicant properly on the types of leave that applied to her request, since she never informed the Applicant that she could use paid leave for urgent private matters. The Respondent had summarily accepted the Principal’s version as the truth without consulting with the Applicant on the merits of her application. They confirmed the relief sought that the Respondent should amend its decision to implement LWP and to repay the R1596.55 (not R1596.66) which was deducted from the Applicant.

46. The Respondent’s version and arguments in closing are summarised as follows: The Applicant’s evidence and version was referred to, in that the Principal on 16 August 2022 denied her request for special leave to attend to her Unisa affairs on 18 and 19 August 2022 because there would be no one who could supervise her learners in the class while she was going to be absent over this period, which she understood and left the matter at that stage. Her view was also that the Principal’s decision to not grant her leave for that period was unfair since she had not been dishonest and was sick for this period and had also admitted that she did not visit Unisa to register on 18 August 2022.

47. Their view was that the Applicant was not honest regarding her illness when she had the discussion with the Principal on 16 August 2022, since she admitted under cross-examination that she did not inform the Principal of her condition of illness during their conversation on 16 August 2022, with the reason that she did not have an open relationship with the Principal. The Applicant had also denied that the Principal asked during their discussion that she could register online with Unisa, but admitted that the Principal told her that she could not get special leave in order to register at Unisa and had told her that she needed to complete her assignments in her own free time.

48. Reference was made to the evidence of the Respondent’s witnesses, with the following highlighted: With respect to the evidence of the Principal, Ms Peters, the detail of the discussion that she had with the Applicant on 16 August 2022 as provided in her evidence is not repeated, save that the Principal had stated to the Applicant that the two days of 18 and 19 August 2022 would be recommended as unpaid leave, with the reason being that the Applicant had indicated to the Principal that she would be taking sick leave for the two days if the Principal did not approve her request. The Principal had cautioned the Applicant for intending to take sick leave on 18 and 19 August 2022, but despite this the Applicant still went ahead and decided to make use of sick leave for the two days. Based on the foregoing, the Principal did not recommend payment of the two days of absence for 18 and 19 August 2022 when she received the Applicant’s application for sick leave and the medical certificate dated 17 August 2022, and instead decided to recommend unpaid leave.

49. As to the Applicant party’s version under the Principal’s cross-examination that input of the Applicant was never requested before the implementation of unpaid leave for this period, the Principal had already informed the Applicant during their discussion on 16 August 2022 that if she is going to take sick leave for 18 and 19 August 2022 that such leave is going to be implemented without pay, which is obvious why when she received the Applicant’s leave application form on 20 August 2022 she decided to recommend such leave without pay since the Applicant already told her on 16 August 2022 that she is going to take sick leave for the two days.

50. With respect to the evidence of the witness Mr Hector, he had pointed out that the Applicant was given the opportunity to respond to the Respondent’s letter dated 21 October 2022 and that she lodged a grievance on 15 December 2022 after the deduction of R1596.55 was made from her November 2022 salary. Further, that the Principal does have the delegated authority to recommend whether leave is granted, or not. The audi alteram partem rule was applied in this matter since the Principal’s recommendation for not granting leave for the Applicant was based on a discussion they had on 16 August 2022, which was before the utilisation of sick leave on 18 and 19 August 2022. According to the contents of the medical certificate the Applicant had seen her medical doctor on 17 August 2022, whereas under normal circumstances sick leave would be utlised and a leave application form only submitted afterwards. The Principal had acted within her rights for declining the Applicant’s leave, with her recommendation therefore supported by their office. In view of the foregoing the Respondent requested that the Applicant’s claim be dismissed.

FINDING

51. I have considered all the evidence and argument presented, but because section 138(7) of the LRA requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute, with such findings made on the balance of probabilities. The following is accordingly found, on the balance of probabilities and in the circumstances of this case:

52. It was common cause that the Applicant was absent from work on 18 and 19 August 2022 and had on 20 August 2022 handed in an application for sick leave for these two days, accompanied by a medical certificate issued on 17 August 2022 by Dr W M van Niekerk in Malmesbury, who recommended that the Applicant be excused of her duties for 18 and 19 August 2022 due to her suffering from a medical condition. The Principal did not recommend that the sick leave be granted for the two days, which resulted in an amount of R1596.55 being deducted as unpaid leave from the Applicant’s earnings during November 2022.

53. In the Principal’s evidence she stated that the reason that she did not recommend that the sick leave be paid was because she was of the view that the Applicant was not ill over the two days and had taken the two days off to register for her studies with Unisa at the Cape Town campus on 18 August 2022 and to complete Unisa assignments on 19 August 2022. The Principal based this on a discussion that the Applicant had with her on 16 August 2022 during which the Applicant had requested time off to attend to her Unisa matters over the two days. She had informed the Applicant that there was no paid leave category that would accommodate such a request and had suggested that the Applicant leave school early at 10h00 on 18 August 2022 to register at Unisa, upon which the Appllicant informed her that she would then take sick leave to get paid time off for this purpose, which the Applicant had done and dishonestly used a sick certificate to obtain such paid time off.

54. The Respondent’s version was that the validity of the medical certificate was not in dispute, but that the Applicant had intended to dishonestly use the two days’ sick leave to attend to her personal Unisa matters.

55. The Applicant did not deny that she had that discussion with the Principal on 16 August 2022, with her version that she was already ill over that period, and produced an earlier medical certificate dated 12 August 2022 for the same condition (a throat infection) that she was booked off ill for and had not fully recovered from, which the Principal would have been aware of, and that she never went to register with Unisa or attended to the Unisa assignments over the two days. The Applicant had also denied that she ever told the Principal during the discussion of 16 August 2022 that she would take sick leave if the two days will be unpaid.

56. The Applicant also alleged that the Principal and Respondent had not complied with the procedures prescribed in Circular 0024/2017 Implementation of leave without pay for employees (office- and institution- based educators and public service personnel) issued by the Head of Education on 11 July 2017 (the Circular). Firstly, for the Principal not communicating to the Applicant that she did not intend to recommend the sick leave application for payment and the reason for doing so before submitting the recommendation to the Respondent, whereas she only became aware that the sick leave was not granted when the deduction for the two days was made off her earnings in November 2022. Secondly, for the Respondent not ensuring that the Applicant received the letters from the Directorate: Service Benefits and the Directorate: Financial Accounting informing her respectively of leave granted without pay and the amount of salary overpayment to be recovered, which the Applicant denied she had ever received, with reference to the following paragraphs in the Circular:

3.1 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 14 days as set out in the circulars mentioned above. It is the responsibility of the manager/supervisor or principal to inform the employee if leave is not being recommended and the reasons for it. Moreover, managers/supervisors and principals are requested to supply the Department with the contact details of the employee concerned (e-mail address and cellphone number).
3.2 This will enable the Department to implement leave without pay without any delay and to make arrangements for the recovery thereof.
3.6 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 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.

57. It is the unfortunate scenario of one person’s version against the other’s person version of what transpired in the discussion between the Principal and Applicant on 16 August 2022, since no other persons where present at that meeting. Apart from a meeting attendance register, no minute of the content of this meeting was handed in at the arbitration to confirm what had transpired between the Applicant and the Principal on 16 August 2022, although it was testified by the Respondent’s witnesses that such a minute had been documented. If the Applicant had indeed said to the Principal in their meeting that she would then take sick leave if she could not get other paid leave to attend to her Unisa affairs, no evidence was presented by the Respondent to confirm the Principal’s assumption or suspicion that the Applicant had obtained the medical certificate to take the two days off to attend to her private Unisa business and was not at home sick as booked off by her medical practitioner, since the Applicant had denied that she had in the end gone to Unisa and completed the assignments as she had originally intended to do. The Respondent could also not effectively dispute the evidence that the Applicant was already on 12 August 2022 diagnosed with a medical condition and that it was probable that she had not yet fully recovered and was again booked off for the same ailment from 18 to 19 August 2022. The validity of the medical certificate was not disputed and under normal circumstances would have been accepted by the Respondent for payment if all other entitlement and procedural conditions had been complied with.

58. With respect to the Applicant party’s submission that the Principal had not complied with the relevant prescripts by informing her that she would not be recommending the sick leave application for payment and the reasons for it, even if the Principal had indicated this to the Applicant during the discussion on 16 August 2022, bearing in mind the Applicant had denied that she said to the Principal she would take paid sick leave if the leave was not granted, in terms of the Circular the Principal was nevertheless required to confirm this with the Applicant after the sick leave application was submitted and to inform the Applicant that she still intended not to recommend it for payment, with the opportunity given to the Applicant to respond and explain or clarify what had happened subsequent to their discussion on 16 August 2022. The Applicant also testified that the letter from the Directorate: Service Benefits dated 21 October 2022 issued by the Head of Education for her attention which informed her that the leave application for the period 18 to 19 August 2022 had not been recommended by her principal/supervisor and will be covered by leave without pay, was never received, with no proof provided by the Respondent that she had signed or acknowledged receipt of this notification. The Applicant testified further that she never received a follow-up letter from the Directorate: Financial Accounting informing her of the amount of salary overpayment and the recovery details, with no proof also provided by the Respondent that this letter was issued to or received by the Applicant.

59. In the circumstances I find that the Applicant has been able, on the balance of probabilities, to discharge the onus to prove that the Respondent had committed an unfair labour practice by not accepting her application for sick leave and the medical certificate for the two days’ absence on 18 and 19 August 2022, and by instead accepting the Principal’s recommendation that these two days be treated as Leave Without Pay (LWP) which resulted in the amount of R1596.55 being deducted from her November 2022 earnings. The Respondent will accordingly be ordered to accept and approve the Applicant’s application for the two days’ sick leave for 18 and 19 August 2022 as being on full pay and to reimburse the Applicant the amount of R1596.55 that was deducted unfairly from her November 2022 earnings.

AWARD

60. The Respondent, Western Cape Department of Education, had committed an unfair labour practice relating to benefits by not granting the two days’ paid sick leave applied for by the Applicant, Ms Tatum-Rae Williams, for the period 18 to 19 August 2022 and for recording these two days as Leave Without Pay resulting in the deduction of an amount of R1596.55 from her November 2022 earnings.

61. The Respondent is ordered to amend the Applicant’s two days’ absence on 18 and 19 August 2022 to paid sick leave and to reimburse the Applicant the amount of R1596.55 by not later than 31 July 2023.

62. No order as to costs is made.

Panelist: Alta Reynolds (Ms)