ELRC688-2021KZN

ELRC ARBITRATION
BETWEEN:
SADTU OBO MABANGA PJ “the Applicant”
and
DEPARTMENT OF EDUCATION – KZN “the Respondent”

ARBITRATION AWARD

Case Number: ELRC688-2021KZN

Last date of arbitration: 18/04/2023
Date of award: 13/07/2023
Closing Arguments: 07/06/2023

NOZIPHO B KHUMALO
ELRC Arbitrator

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

DETAILS OF HEARING AND REPRESENTATION

1. The matter was set-down for arbitration in terms of Section 24 of the Labour Relations Act (LRA). The arbitration was held virtually on the 09/07/2021 and the parties concluded pre-arbitration minutes. The matter was rescheduled for 06/09/2021 but could not proceed due to the Applicant being hospitalized and was postponed indefinitely. The matter was rescheduled for 26 /06/2022 but was postponed for 26/07/2022 where there was a ruling issued on a point-in-limine that was raised by the Respondent concerning jurisdiction.

2. The matter was scheduled again for 12 October 2022 but it did not proceed due to witnesses not being available and the Respondent representative not being well and was rescheduled for 01/12/2022.

3. On 1 December the matter could not proceed due to the Applicant being off sick and the parties agreed to proceed on 18/04/2023. On 18/04/2023 the Applicant was not presentment due to hospitalization. The parties agreed that instead of postponing the matter the parties file written arguments as the facts of the case are common cause.

4. The Applicant filed its argument on 17/05/2023 and the Respondent on 3/06/2023. The response was filed on 07/06/2023.

5. The Applicant, Promise Jabulile Mabanga was represented by Mr Siyabonga Zondi and official of SADTU whilst Mr Itumeleng Makhooe appeared for the Respondent.

6. Parties agreed to make written submissions.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

7. The Applicant is an educator at Sphumelele Primary school at Inanda, under the Pinetown District in Kwazulu Natal. She has been employed by the Respondent from 01 April 2003.

8. The applicant applied for temporary incapacity leave for the periods 15 April 2019 to 20 September 2020 as well as from 01 October 2019 to 04 December 2019.
9. The leave was partially granted from 15 April 2019 to 20 September 2019 and declined from 21 August 2019 to 20 September 2019. The period from 1 October 2019 to 4 December 2019 was declined.

10. The Applicant was advised by the Respondent that her leave for the period 15 April 2019 to 20 August 2019 was partially approved and that the period 1 October 2019 to 4 December 2019 was declined. She lodged a grievance regarding the non-approval of her leave for the period 21 August 2019 to 20 September 2019 and 1 October 2019 to 4 December 2019.

11. I am required to determine firstly, whether the Applicant followed all the procedures when she applied for temporary incapacity leave. Secondly whether the leave period from 21 August 2019 to 20 September 2019 and 01 October 2019 to 4 December 2019 was accounted for or not. Thirdly, whether the Respondent prejudiced the Applicant by not informing her timeously that the leave was declined. Lastly, whether the leave for both the periods 21 August 2019 to 20 September 2019 and 1 October 2019 to 4 December 2019 should be granted with full pay or not.


12. I am also required to, based on his finding on the foregoing issues in dispute, determine any relief, if applicable to the Applicant. The Applicant seeks that her temporary incapacity leaves for both periods, 21 August 2019 to 20 September 2019 and 1 October 2019 to 4 December 2019, be granted with full pay.
SUMMARY OF EVIDENCE AND ARGUMENTS

Applicant’s submission

13. The applicant was unwell from 15 April 2019 to 20 September 2020. She applied for temporal incapacity leave through the correct processes of filling in Annexure B form, which is an application form for temporal incapacity leave. The form was completed by the Applicant as well as the treating medical practitioner.

14. The leave was granted only for the period 15 April 2019 – 20 August 2019. The rest of the period was declined. The Applicant was therefore expected to resume work on 20 August 2019.

15. The Applicant applied for another temporal incapacity leave from 01 October 2019 – 04 December 2019. When the Applicant made the second application, she was not aware that the period 21 October 2019 – 20 September 2019 was declined from her first application as she had not been notified. Part C of the form highlights the medical condition of the Applicant. It lists surgery visits dates, the diagnosis/s applicable to the Applicant such as depression, back pains and epilepsy, amongst others. The Applicant is still suffering from the same medical conditions to date.

16. On 01 December 2020, the Applicant was notified that her leave was not approved. At the time she had already taken leave. Thandiwe Risk Management provided a report which agrees with the treating doctor that the Applicant was incapacitated to perform her duties. Thandiwe Risk management however, approved part of the leave which was inconsistent with its findings. Thandiwe Risk Management’s findings were also not based on a second medical opinion as prescribed by PILIR.

17. The applicant, also, voluntarily gave consent for the Respondent to access her medical records, so as to make informed decisions in any medical matter relating to her. this also gives the Respondent an opportunity to bring any expert to make diagnosis, treatment plan/s for the Applicant to assist her recovery, which they did not utilise.

18. The Applicant has been unable to attend her own arbitration due to her ill health. She has a history of illness. Her epilepsy attacks started in 2013. In 2020, she had three attacks, with an epilepsy attack on 17 August 2020 leading to hospital admission. In 2021, she had two epilepsy attacks. In 2022, she had 2 epilepsy attacks. She sought assistance from an NGO (SAINT Giles), to assist her with epilepsy remedial physical training, to be able to walk, stand for longer minutes, “A” 39, 41, 43. The Department of Health, wrote a medical report of her condition, specifically her epilepsy and mental state, inclusive of her ability to work, “A” 47 – 49. Her Psychiatrist report of 2021 is contained in the “A” 23 which is inclusive of epilepsy, and a recommendation for medical boarding. In “A”57 is her school Principal’s letter, confirming epilepsy seizures attacks that have happened at work, in front of learners (Foundation Phase) as well as other educators.

19. Case No: CA 10/2018 Western Cape Doe vs Jethro, deals with temporal incapacity leave extensively. The court ruled that the respondent (Jethro) was unfairly treated by his employer. He was deemed to be unfit to perform his duties, due to the nature of his sickness, however the Doe did not pay him, and dismissed him. The appeals court maintained the Labor Courts ruling to re-instate Jethro. In our case, the respondent, in this case the KZN Doe, did not make any means to have a second opinion on the application for incapacity leave by Mabanga, the applicant. By law, they could have had a second opinion to determine the sickness of the applicant, if they deemed her fit to work.

20. The Applicant argued further that the non – approval of the Applicant’s temporary incapacity leave was unprocedural, the 30 days’ rule was not followed. Procedures guide the relationship between the employer and employee, without them, there would be chaos in the workplace

The Respondent’s case

21. The Respondent’s argument is summarised as follows. The temporary incapacity leaves for the first period 15 April 2019 to 20 September 2019 constituted 94 days of which 71 were granted. According to the report, the period 21 August 2019 to 20 September 2019 was declined on grounds that the period was unjustifiably excessive. The Applicant was advised of the outcome of her application via a letter dated 1 December 2019 and she signed acknowledgement of receipt on 4 December 2019.

22. The Second period 01 October 2019 – 04 December 2019 was declined and the Applicant was advised via a letter dated 13 January 2020. The official who was dealing with the matter made a note that the Applicant confirmed receipt of the letter on 16 January 2020 telephonically, “A”52-53.

23. The absence from the proceedings does not necessarily mean that the Applicant is sick. The converse could be argued to say that the Applicant is running away from accountability.

24. The criteria for approval of temporary incapacity leave is not dependent on correct completion of annexure/ form. Medical experts have an established criterion that is applicable to all public servants in the country.

25. Approval is not dependent on the Applicant's medical practitioner. Paragraph 4 of the form conscientizes any Applicant on the possibility of a negative outcome. Going on a temporary incapacity leave is taking a calculated risk that it could be rejected. It is granted conditionally at the Employer's discretion. The Applicant committed a mistake of treating temporary incapacity as an extension of sick leave. Sick leave is an entitlement. Temporary incapacity leave is granted at an employer's discretion, based on the health expert assessment.

26. In terms of case law, a late response to the application does not harden into an entitlement of temporary incapacity leave. It does not mean that leave unwarranted becomes due just because the outcome is issued outside of 30 days. The Applicant misinterpreted the risk assessor's report. The incapacity is related to the advised period. Excessive duration is not advised.

27. The Applicant was advised to lodge a grievance. The Applicant was also given a directive on how to go about lodging a successful application/grievance. The Applicant indeed lodged a grievance. The outcome thereof was communicated to her on 06 November 2020. The Applicant would have lodged the grievance long after the initial communication.


ANALYSIS OF EVIDENCE AND ARGUMENT

28. It is trite law that an employee who has exhausted his/her normal sick leave, and who according to the treating medical practitioner requires to be absent from work due to temporary incapacity, may apply for temporary incapacity leave with full pay. Any application in that regard must be made in accordance with the provisions of the PILIR, and by submission of certain prescribed application forms, which should be accompanied by a variety of medical records. Furthermore, an employee making the application is required to undergo further medical examinations in terms of the assessment process described in the PILIR. An employee is required to submit an application for temporary incapacity leave personally or through a relative, fellow employee or friend, within 5 working days after the first day of absence.

29. In this case the following facts are common. The Applicant applied for temporary incapacity leave for two (2) periods, 15 April 2019 to 20 September 2019 and 1 October 2019 to 4 December 2019. The temporary incapacity leave was partially approved from 15 April 2019 to 20 August 2019 for the first period. The second period of temporary incapacity leave for the period 1 October 2019 to 4 December 2019 was declined.

30. In terms of PILIR, applications for temporary incapacity leave must be submitted on the prescribed application forms and relevant annexures, A, B, C and D be signed accordingly. In this case there is no indication of any defect within the application form itself. It is therefore common cause that the Applicant completed her application accordingly.

31. The Applicant’s bone of contention is firstly that the Respondent did not advises her within the thirty (30) days period as prescribed by PILIR. In terms of PILIR the employer shall specify the level of approval in respect of applications for disability leave in writing and state clearly the reasons for the refusal. The policy also make provision for the aggrieved employee to lodge a grievance if not satisfied with the outcome of his/her application. The Applicant in this case did lodge a grievance.

32. The policy provides that such applications be lodged within specified time frames. The Applicant was expected to have lodged her application within five (5) working days after the first day of absence. The Applicant complied with this provision. The Applicant was notified of the outcome of her application for the first period on 26 November 2019. The outcome for the second period was issued on 13 January 2020. The outcomes of both periods were issued outside the prescribed time frames as set out in the PILIR. the Respondent therefore did not comply with the provisions of PILIR in this regard.

33. In terms of Resolution 7 of 2000, paragraph 7.5.1 (b) prescribes that: "The employer shall during 30 days, investigate the extent of the inability to perform normal official duties, the degree or inability to perform normal official duties, the degree or inability and the cause thereof. Investigations shall be in accordance with item 10(1) of Schedule 8 of the Labour Relations Act of 1995.

34. In Popcru and Another v Department of Correctional Services and Another (D642/15) (2016) ZALCD, 25 the Labour Court held that "A late determination of an employee's application for additional leave, as lamentable as this is, and a subsequent instruction to pay back the money to which the employee was not entitled does not produce a decision that retrospectively deprives the employee of a right to the payment in question. An employee seeking additional sick leave in terms of PILIR has conditionally been paid a salary while their application for additional leave is considered. This consideration should be over within 30 days. However, if the period the employer takes to decide the application exceeds the 30 days set out in PILIR, I do not see how the conditionality of payments to an employee, subject to a medical assessment, hardens into an entitlement after the 30-day investigation period lapses. Nor, in light of clause 7.2.2.2, 7.3.3.2 and note 4 of PILIR, should a reasonable employee applying for additional leave assume that, should a medical assessment go against them, even delayed, they are entitled to be paid for their absence from work. It seems to me that, if the underlying medical condition which prompted an employee to seek additional sick leave, is assessed not to have warranted such leave, this fact must determine what happens to any payments they receive while applying and not the employer's delay in attending to the application."

35. In PSA and another v PSCBC & Others (D751/09) [2013] ZALD 3 (26/01/2013) the court held that where the state exceeds 30 days in investigating and giving an employee a response on his /her application it cannot penalize the employee.

36. In PSA and HC Gouvea v PSCBC, Commissioner Lyster NO and Department of Land Affairs (D7511109) [2013] ZALCD the court held that an employer's decision in exercising its discretion in terms of a collective agreement may not apply retrospectively as this amounts to an unreasonable and arbitrary exercise of discretion with unfair consequences to an employee. In a subsequent labour court matter Department of Roads and Transport v Robertson and Others [2017] ZALCPE the court confirmed the earlier judgement of 'Gouvea' finding that, in declining applications outside the prescribed period and proceeding to recover remuneration from the employee was in breach of paragraph 7.5.1 (b) of the PSCBC resolution applicable to incapacity leave.

37. In the latest judgement of Department of Roads and Transport v Robertson and Others [2017] ZALCPE the Labour Court confirmed that declining applications outside the prescribed time frame and proceeding to recover remuneration from the employee was in breach of the PSCBC resolution, so will be in this case. I therefore find in this regard the judgement of PSA and HC Gouvea v PSCBC, Commissioner Lyster NO and Department of Land Affairs (D7511109) [2013] ZALCD as the most relevant.

38. I further find that the Applicant was successful in proving its reason/s for the applications which the Respondent did not dispute. Furthermore, there was no evidence submitted which is in accordance with item 10(1) of Schedule 8 of the Labour Relations Act of 1995.

39. In terms of the above, I therefore find that leave should be granted with full pay for both periods, 21 August 2019 to 20 September 2019 and 1 October 2019 to 4 December 2019. Any deduction from the Applicant’s salary will be considered unjust and unfair.


AWARD

40. The leave for the periods 21 August 2019 to 20 September 2019 and 1 October 2019 to 4 December 2019 should be granted with full pay.

41. The Respondent, Department of Education - KZN is accordingly not entitled to deduct the amount of R100 000-00 from the Applicant’s salary in respect of the periods 21 August 2019 to 20 September 2019 and 1 October 2019 to 4 December 2019 and is ordered to repay all such amounts as may have been deducted in this regard.

42. I make no order as to costs.

Commissioner: Nozipho B Khumalo
Date : 25/07/2023.