PSES428-19/20FS
PSES428-19/20FS
Award Date:
10 July 2020
Case Number: PSES428-19/20FS
Province: Free State
Applicant: SAOU obo KHOEELE ML
Respondent: Department of Education Free State
Issue: Unfair Labour Practice - Provision of Benefits
Venue: hearing was digitally held on the Zoom platform
Award Date: 10 July 2020
Arbitrator: Adv S Fourie
Commissioner: Adv S Fourie
Case No.:PSES428-19/20FS
Date of Award: 10 July 2020
In the ARBITRATION between:
SAOU obo KHOEELE ML
(Union / Applicant)
and
DEPARTMENT OF EDUCATION (Free State)
(Respondent)
Union/Applicant’s representative: Ms. H Human from the SAOU
Tel: 051 430 1531
Telefax: 051 430 1564
Email: hesterh@saou.co.za
Respondent’s representative: Mr. V Gubuza
Tel: 079 898 4433
Telefax:
Email: employeerelationsscanner@fseducation.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 186(2) (a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for Arbitration on the 24th of June 2020 and finalized on the 10th of July 2020. The Applicant was represented by Ms. H Human from the SAOU. Mr. V Gubuza an ER official from the Department of Education represented the Respondent. The parties were afforded the opportunity to present written heads of argument to be submitted by the 1st of July 2020. The hearing was digitally held on the Zoom platform and the process was digitally recorded. Parties requested the matter to be decided on paper and to be allowed to file written arguments in line with what they agreed to be in dispute.
2. Parties were allowed to present opening statements to narrow the issues to establish common cause facts and what the dispute relate to. Parties could not agree whether the despute related to the interpretation and application of Clause 9 of Resolution 7 of 2001 or whether it was a dispute related to an unfair labour practice in how the Respondent exercised its discretion. Parties also agreed to exchange written submissions and to present all to Council by the 1st of July 2020. Applicant had to submit by Friday 26 June 2020 and the Respondent by Monday 29 June 2020 where after the Applicant’s reply by 1 July 2020. The Respondent filed no submissions in respect of the jurisdictional point raised during the Zoom session and the Respondent failed to file its submissions in time but was taken into consideration.
BACKGROUND
3. The Applicant is employed by the Respondent since 1 April 1999 and currently a PL-1 educator at Matla Primary School. The Applicant applied for Temporary Incapacity Leave (TIL) in terms of the Chapter H of the PAM document and the Policy and Procedure on Incapacity leave and ill health retirement (hereafter referred to as the PILIR policy) due to the fact that her normal sick leave was insufficient to cover the entire period she booked off for after her operation. The Applicant was booked off from 13 November 2018 to 07 December 2018 on sick leave. According to the Respondent the Applicant’s application for paid TIL was partially approved. It was approved for the period of 13 November 2018 to 30 November 2018. According to the Applicant, the Respondent declined the total period of TIL she qualified for. The Respondent failed to apply the measures contained in the PAM and PILIR policy and failed to apply its mind when the Respondent decided to disapprove the Applicant’s application and as such subjected her to an unfair labour practice when they denied her a benefit for which she qualified. A formal dispute was referred to the ELRC on 19 August 2019. The purpose of this arbitration is to determine whether or not the Applicant qualified for the benefit she applied for and whether the Respondent followed the prescriptions of the above mentioned regulations and applied his mind when it decided to decline the Applicant’s application.
ISSUE TO BE DECIDED
4. Whether or not the Applicant qualified for the benefit she applied for and whether the Respondent followed the prescriptions of the above mentioned regulations and applied his mind when he decided to decline the Applicant’s application.
SURVEY OF EVIDENCE AND ARGUMENT
5. For purposes of this award, I do not intend, to record verbatim the evidence led, the submissions made and or the arguments raised on record. Only the prominent points raised by each party in their submissions that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence and submissions that were presented. The Applicant entered into evidence a bundle of documents, Bundle A with three volumes. Volume 1 pages 1 – 61, Volume 2 pages 62 – 120 and Volume 3 pages 121 – 170. The Respondent submitted no bundle of documents. Parties presented opening statements to narrow the issues where after they presented their arguments in writing of which their written submission forms part of the official record.
APPLICANT’S VERSION AND SUBMISSIONS
6. Hester Human (Human) presented the following submissions: On 13 November 2018 the Applicant had carpal tunnel surgery done on her dominant hand (See page 64). Dr. EM Visser, an orthopedic surgeon, performed the surgery at Rosepark Life Hospital. She applied for temporary incapacity leave (TIL) for the period 13 November 2018 to 07 December 2018 (See pages 47 – 73). The Respondent did not question any of the documents submitted and neither did they request any additional information or referred the Applicant for a second opinion.
7. The new sick leave cycle commenced on 01 January 2019 and as such the Applicant was accredited with 36 working days sick leave (See page 82 of the Applicants Bundle. It is a persal printout dated 18 October 2019). The current leave cycle expires on 31 December 2021. The previous sick leave cycle commenced on 01 January 2016 and expired on 31 December 2018. According to her persal printout, on 12 November 2018, the day before her sick leave commenced, the Applicant used 22 days sick leave and had 14 days sick leave left (See page 83 and 84 of the Applicant’s bundle). The period 13 November 2018 to 30 November 2018 amounts to 14 days sick leave. Sick leave to which the Applicant is entitled to in terms of the PAM document (See Applicant’s 3 Bundle page 105 Section H.5.2). The Applicant was awarded this period as normal sick leave and in essence applied for TIL for the period 03 December 2018 to 07 December 2018 which amounted to 5 days. The total period for which she was booked off was 19 working days.
8. On 09 May 2019 the Principal handed the Applicant a document dated 11 March 2019 which document stated that her TIL application was only partially approved and that the period of 03 December 2018 to 07 December 2018 has been declined. According to the document, the Applicant’s TIL application was only partially approved due to the following reasons: 1) Excessive duration - the period she was booked off was deemed excessive for the diagnoses, and 2) Should be able to perform adapted duties – the information received did not indicate whether the Applicant was totally incapacitated during the period of absence. The document provided her with the option of lodging a formal grievance. The latter, according to the document had to be submitted by 12 April 2019 (See pages 73 to 76). The Applicant lodged a formal grievance on 15 May 2019 (See pages 77 - 79). In the grievance she explained that she was initially booked off until 03 December 2018 but that she returned to the doctor as she was still unable to use her hand. She was then booked off for a further period until 07 December 2018.
9. On 10 July 2019 the Respondent informed the Applicant that her grievance was unsuccessful (See page 80). The document stated the following: 1) The HOD reviewed and assessed her application and declined it because there was no specialist report submitted with the application, and 2) she had the opportunity to lodge a grievance and that was also declined. On 31 July 2019 leave without pay was deducted from the Applicant’s salary for the period 03 December 2018 to 07 December 2018 (See page 81).
10. According to the Labour Relations Act, No 66 of 1995 (hereafter referred to as the LRA), section 186(2), the definition of an unfair labour practice is: “Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving inter alia unfair conduct by the employer relating to the 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. The Applicant applied for a benefit, Temporary Incapacity Leave (TIL). Such leave can be applied for when an employee depleted his/her normal sick leave, in terms of the following Policy, Collective Agreement and Legislation: 1) Policy and Procedure on Incapacity Leave and Ill-health Retirement (PILIR), April 2009 (See pages 112 – 140), 2) ELRC Resolution 7 of 2001 (See page 86 – 104) and 3) Personnel Administrative Measures (PAM) published on 12 February 2016 in Government Gazette No. 19767 (See pages 105 -111).
11. The Applicant’s normal sick leave was depleted on 30 November 2018. She applied for temporary incapacity leave (TIL) for the period 13 November 2018 to 07 December 2018 (See pages 47 – 73). The employer did not question any of the documents submitted and neither did they request any additional information or referred the employee for a second opinion. The new sick leave cycle commenced on 01 January 2019 and as such the Applicant was accredited with 36 working days sick leave (See page 82 of the Applicants Bundle. It is a persal printout dated 18 October 2019). The current leave cycle expires on 31 December 2021. The previous sick leave cycle commenced on 01 January 2016 and expired on 31 December 2018. According to the Applicant’s persal printout, on 12 November 2018, the day before her sick leave commenced, the Applicant had used 22 days sick leave and had 14 days sick leave left (See page 83 and 84 of the Applicant’s bundle). The period 13 November 2018 to 30 November 2018 amounts to 14 days sick leave. Sick leave to which the Applicant is entitled to in terms of the PAM document (See Applicant’s 3 Bundle page 105 Section H.5.2). The Applicant was awarded this period as normal sick leave. In essence, she applied for TIL for the period 03 December 2018 to 07 December 2018 which amounted to 5 days. The total period for which she was booked off was 19 working days.
12. In terms of PAM, Section H.5.2, the Applicant was entitled to 36 days’ paid sick leave for the period 01 January 2016 to 31 December 2018. These days were given to the Applicant as stated by her leave persal record (See pages 82 – 85). H.5.3.2 of the Pam states that “An educator whose normal sick leave credits in a three year-cycle (36 days), have been exhausted during the prescribed sick leave cycle, and who, according to the relevant practitioner, requires to be absent from work due to a temporary incapacity may apply for temporary incapacity leave with full pay on the applicable application form prescribed by in terms of PILIR in respect of each occasion. “ Thus even though the Applicant applied for the period 13 November 2018 to 7 December 2018, the period of 13 November 2018 to 30 November 2018 was awarded to the Applicant and deducted from her normal sick leave after which the latter was depleted. The Applicant thus essentially applied for TIL for the period 3 December 2018 to 7 December 2018, which is 5 working days.
13. The PILIR Policy (See Bundle A page 112 -140) and Chapter H section H.5.3 of the PAM document (See Bundle A page 107 - 110) applied to the Applicant and the Respondent failed to adhere to the regulations set out in these documents and did not apply its mind in making the decision to disapprove the Applicant’s TIL application. The purpose of the regulations contained in these documents is to put in place additional leave measures when an employee’s normal sick leave has been depleted. Clause 5.3 of the PILIR policy (See page 117 of the Applicant’s Bundle) states that the mission of the policy is to “adopt a scientific approach to health risk management based on sound medical, actuarial and legal principles.”
14. The Respondent would argue that the information sent to the Health Risk Manager is the second opinion mentioned in these documents. However, the PAM document is clear on the procedure to be followed: 1) H.5.3.3.1 The educator must submit medical proof that he/she is too ill/injured to perform his/her work satisfactorily. 2) H.5.3.3.4 states that the employee is required to give his/her consent that medical information or records can be disclosed to the Health Risk Manager and undergo further medical examinations. 3) H.5.3.8 requires the employer to within 5 working days of receipt of the application grant the employee TIL conditionally for a period of 30 days and refer the application together with all the documentation to the Health Risk Manager for assessment. The Health Risk Manager is clearly part of the process and not an optional second opinion that the HOD can utilize when the need arises. After H.5.3.8 which explains that once the TIL application has been submitted to the employer and the employer has sent it to the Health Risk Manager for assessment, H.5.3.9 continues to state that the HOD may require the employee to undergo a second assessment by medical practitioners of his choice, which is another tool at his disposal to gather enough information to make an informed decision. Page 4 of the PILIR policy (See page 114 of the Applicant’s Bundle) also defines the Health Risk Manager as a “juristic person appointed by the Employer to advise on the granting of incapacity leave and ill-health retirement of employee”. It does not state that it is a board of medical practitioners that the Employer makes use of when he needs a second opinion.
15. There is no proof that the Respondent investigated, considered and presented the Applicant with proposals to adapt her duties making it possible for her to return to work at an earlier time. H.5.3.12 of the Pam document states that the HOD must (own emphasis) as soon as possible after receiving the advice from the Health Risk Manager, and if applicable, decide on the possibility of adapting her duties to accommodate the employees illness or injury or provide alternative employment and “as soon as possible approve and implement an action plan for this purpose”. The Health Risk Manager clearly felt that adapted duties should have been possible, yet there was no proposals of adapted duties, alternative employment offers or actions plans presented on paper despite it being required by the PAM document from the Respondent. In this case, the TIL applied for, would have lapsed by the time the Respondent would have had to provide feedback in terms of the PAM document (30 working days). But even so, if the Respondent was aware of the complete process to be followed and they applied their mind to the process, they would have indicated that such a need was identified but that the Applicant’s TIL application ended before the Respondent could instate or implement an action plan.
16. The reasons cited for the disapproval of her TIL application as well as the reasons cited for the disapproval of her grievance, proves that the Respondent failed to apply its mind when he took the decision. According to the Respondent, the Applicant’s TIL application was only partially approved due to the following reasons: 1) Excessive duration - the period she was booked off was deemed excessive for the diagnoses and 2) she should be able to perform adapted duties – the information received did not indicate that the employee was totally incapacitated during the period of absence. The Applicant’s grievance was unsuccessful (See page 80) for the following reasons: 1) The HOD reviewed and assessed her application and declined it because there was no specialist report submitted with the application and 2) she had the opportunity to lodge a grievance and that was also declined.
17. Studying the reasons given for the declined grievance, the Respondent stated that her application had no specialist involvement and then it continues to state that she had an opportunity to lodge a grievance and that that was also declined. Cleary the Respondent has made a distinction between the reasons the TIL application was declined and the grievance. The lack of specialist involvement is thus also a reason why the TIL application was declined initially. In essence the Respondent did not provide any reason why the grievance was declined but simply stated:” she had an opportunity to lodge a grievance and that was also declined.
18. The PILIR policy on page 7 (Page 118 of the Applicant’s Bundle) number 7.1.5.1 states that for an employee’s TIL application to be considered, the employee must submit a medical certificate issued and signed by a medical practitioner. Neither the PAM nor the Resolution states that specialist involvement is a prerequisite for a TIL application. The reason cited for the disapproval of the Applicant’s TIL application is thus in contrast to that stated by the Policy, the Resolution and the PAM. Furthermore, the conduct of the Respondent is inconsistent. It approves the application of Mr. Coetzee where there was no specialist involved but disapproves the Applicant’s TIL application because there was no specialist involvement. For the period of 03 December 2018 to 07 December 2018, the period that was declined, the Applicant was booked of by a medical practitioner (See page 63 of the Applicant’s Bundle). For the period prior to that, she was indeed booked off by a specialist.
RESPONDENT’S VERSION
19. Mr Gubuza for the Respondent submitted that the Respondent applied his mind when he made a decision to decline the application stating the Applicant’s reason from staying away from work were indeed excessive. The time that was allocated to the Applicant to recuperate from the operation is longer than a patient that had underwent the same operation. The Respondent took the matter to the Health Risk Manager for a second opinion and the Health Risk Manager advised the Respondent that period was indeed excessive. The question to be decided is whether the Respondent decision not to grant the applicant temporary incapacity leave was arbitrarily and therefore unfair. The Respondent fully agree with the Applicant that the Resolution grants the HOD authority to approve or disapprove a TIL application of any employee. The HOD exercised his authority after perusal of all the necessary medical documents submitted by relevant persons and bodies that must advise him accordingly. The HOD decided to decline this application and the investigation was done in a fair and transparent manner.
20. The Applicant was even given an opportunity to lodge a grievance which was declined. The HOD applied his mind to the facts that were in front of him and made an appropriate decision which was fair. The reason for the declining the application was because the period for not reporting for duty was excessive. The Applicant is fully aware that during this 2016 - 2018 leave cycle, she had exhausted her sick leave day’s hence partial approval. It is actually 17 days not 14 as indicated by the Applicant for the 2019 -2021 cycle. Leave days cannot be used retrospectively. It is a fact that Applicant failed to report for duty on the said date, hence 5 days were not approved. In this matter the commissioner is not called upon to decide whether the Respondent failed in his interpretation and application of the relevant resolution but is called upon to make a ruling on whether the decision of the HOD to decline the TIL application of the Applicant was fair or not. The Respondent in applying his mind took all the relevant documents into account when reaching the decision not to grants temporary incapacity leave. The Respondent subjects every employee to the same treatment through a resolution which both Respondent and Applicant agrees that it is governing temporary incapacity leave and Respondent subjected Applicant to the same.
ANALYSIS OF EVIDENCE AND ARGUMENT
21. I must decide on whether the Respondent followed all the processes described in the ELRC Resolution 7/2001 (hereafter referred to as the Resolution), Annexure A, par.9, Chapter H Section H.5.3 of the PAM document (Bundle A, page 107 - 110) and the PILIR Policy (Pages 116 – 123) correctly. I must also decide whether the Respondent applied his mind when he made the decision to disapprove the Applicant’s application. The ELRC Resolution and the PILIR Policy refers to Item 10(1) of Schedule 8 of the Labour Relations Act which stipulates the following: (1) Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee’s disability. Thus, based on this, the Respondent had the responsibility to investigate the application and while investigating the application determine: 1) the extent of the Applicant’s inability to perform her normal duties, and 2) the possibility to adapt her duties.
22. It is common cause, that the Applicant applied for TIL and that her application was accepted. During the opening statements, the Respondent also stated that the decision taken by the HOD was based on the recommendation by the Health Risk Manager and they alleged that they followed all the prescripts of the PILIR Policy and the PAM document. It is common cause that the period 13 November 2018 to 30 November 2018 amounts to 14 days sick leave to which the Applicant is entitled to in terms of the PAM document (See Applicant’s 3 Bundle page 105 Section H.5.2). The Applicant was awarded this period as normal sick leave. In essence, she applied for TIL for the period 03 December 2018 to 07 December 2018 which amounted to 5 days. The total period for which she was booked off was 19 working days. It is also common cause that in terms of PAM, Section H.5.2, the Applicant was entitled to 36 days’ paid sick leave for the period 01 January 2016 to 31 December 2018. These days were given to the Applicant as stated by her leave persal record (See pages 82 – 85). H.5.3.2 of the Pam states that “An educator whose normal sick leave credits in a three year-cycle (36 days), have been exhausted during the prescribed sick leave cycle, and who, according to the relevant practitioner, requires to be absent from work due to a temporary incapacity may apply for temporary incapacity leave with full pay on the applicable application form prescribed by in terms of PILIR in respect of each occasion. “ Thus even though the Applicant applied for the period 13 November 2018 to 7 December 2018, the period of 13 November 2018 to 30 November 2018 was awarded to the Applicant and deducted from her normal sick leave after which the latter was depleted. The Applicant thus essentially applied for TIL for the period 3 December 2018 to 7 December 2018, which is 5 working days. It is also common cause that the conditions to be met and the process to be followed in relation to Temporary Incapacity Leave (TIL), is described in the PILIR Policy, Chapter 5 of the Pam document and ELRC Resolution 7 of 2001, Annexure A section 9. Common sense dictate that these three documents should be read in conjunction with each other and do not stand in isolation to each other.
23. I must decide whether the Respondent followed all the processes described in the ELRC Resolution 7/2001 (hereafter referred to as the Resolution), Annexure A, par.9, Chapter H Section H.5.3 of the PAM document (Bundle A, page 107 - 110) and the PILIR Policy (Pages 116 – 123) correctly. The Resolution and the PILIR Policy refers to Item 10(1) of Schedule 8 of the Labour Relations Act which stipulates the following: (1) Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee’s disability. Based on this, the Respondent had the responsibility to investigate the application and while investigating the application, determine the extent of the Applicant’s inability to perform her normal duties and the possibility to adapt her duties. In addition, section 7.1 and 7.2 of the PILIR Policy reiterates item 10(1) of Schedule 8 of the LRA namely that it is the responsibility of the Respondent to investigate the TIL application. The reasons cited for the disapproval of her TIL application as well as the reasons cited for the disapproval of the Applicant’s grievance, will be dealt with hereunder.
24. Clause 9.5 of the ELRC Resolution grants the HOD the authority to approve or disapprove the TIL application of an employee and H.5.3.10 of the PAM document states that this decision is subject to the HOD applying his or her mind. When deciding, the HOD must consider the following: “the medical certificate (with or without it describing the nature and extent of the illness or injury), medical information/records, the Health Risk Manager’s advice, the information as supplied by the educator and all other relevant information available to the HOD. Then based thereon, approve or refuse the temporary incapacity leave granted conditionally, on conditions that the HOD may determine. From the evidence, there is no proof that the HOD, other than that it considered the recommendations of the Health Risk Manager, admitted by the Respondent, considered any of the other documents submitted. The HOD did not make use of the option (offered to him by the Agreement), for the Applicant to submit a second opinion. Clause 9.4 of the Resolution states that an investigation must be conducted into the nature and extent of the incapacity and that this investigation will be conducted in accordance with item 10(1) of Schedule 8 of the Labour Relations act, 1995.
25. The Applicant signed a consent form to be subjected for a second medical opinion (See page 50 of the Applicant’s Bundle), which gave the Respondent consent to subject the Applicant to examination by medical doctors of their choice. If the Respondent doubted the validity of her application and/or the extent of her incapacity, the Respondent must substantiate, after investigations that the Applicant was not truthful, or her medical practitioner was inept or that she was booked off for excessive periods. However the Respondent failed to request the Applicant to consult doctors or for that matter specialists of their choice, to determine the extent of her incapacity. The decision to decline the Applicant’s TIL application for the period 03 December 2018 to 07 December 2018 in my view was capricious, since no second opinion was obtained from a doctor of their choice to establish whether the Applicant was booked off incorrectly. Where an employee is booked of by a medical doctor and the Health Risk Manager are of a different view to what the medical doctor directed, the HOD in my view, to exercise its discretion objectively, must request a second opinion to be in a position to gather the necessary medical evidence (being the investigating period) in relation to the directive in terms of paragraph H.5.3.11 of the PAM. The directive states that: the HOD may on the basis of medical evidence gathered during its investigation approve the granting of additional incapacity leave on conditions that he/she must determine. The HOD may for this purpose grant conditionally further temporary incapacity leave.
26. In casu, the doctor booked the Applicant off for an additional period 03 December 2018 to 07 December 2018, which is the period the Applicant applied for as TIL. The Health Risk Manager was of the opinion that this was excessive and not necessary leaving the HOD with two conflicting findings in front of him of different medical professionals, and failed to request a second opinion as directed by clause 9.3 of the Resolution and H.5.3.9 of the Pam document. H.5.3.3.4 of the PAM states that the employee is required to give his/her consent that medical information or records can be disclosed to the Health Risk Manager and undergo further medical examinations which directs to a second opinion. The Health Risk Manager’s view, cannot be construed as a second opinion although the HOD may attach weight to it to obtain a second opinion from a medical doctor of their choice. Thus considering the old saying, compare “apples with apples”, the HOD could easily compare two medical doctors in exercising its discretion.
27. In Aries v CCMA and others (2006) 27 ILJ 2324 (LC) the Court held that there are limited grounds on which an arbitrator, or a Court may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The Court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner. In casu, the Respondent did not exercise its discretion properly considering the weight it attached to the Health Risk Practitioner’s view. Clause 5.3 of the PILIR policy (See page 117 of the Applicant’s Bundle) states that the mission of the policy is to “adopt a scientific approach to health risk management based on sound medical, actuarial and legal principles.” Page 4 of the PILIR policy (See page 114 of the Applicant’s Bundle) also defines the Health Risk Manager as a “juristic person appointed by the Employer to advise on the granting of incapacity leave and ill-health retirement of employee”. The Health Risk Manager is not a medical practitioner for the Respondent to utilize when he/she needs a second opinion.
28. The reasons cited for the disapproval of her TIL application as well as the reasons cited for the disapproval of her grievance, proves that the Respondent failed to apply its mind and to obtain further information when it exercised its discretion when the decision was made. According to the Respondent, the Applicant’s TIL application was only partially approved due to the following reasons: 1) Excessive duration - the period she was booked off was deemed excessive for the diagnoses and 2) she should be able to perform adapted duties. The Applicant’s grievance was unsuccessful for the following reasons: 1) The HOD reviewed and assessed her application and declined it because there was no specialist report submitted with the application and 2) she had the opportunity to lodge a grievance and that was also declined. The first reason of the application, the excessive duration - the period she was booked off was deemed excessive for the diagnoses and the first reason for the grievance that there was no specialist report submitted with the application, show the improper conduct. No second opinion was requested from the Applicant which was easily obtainable because the Respondent could merely request same. The Respondent ignored the stipulations of the PILIR Policy, H.5 of the Pam and the ELRC Resolution when it did not investigate the Applicant’s TIL application which lead to a poor assessment thereof in terms of the standard set, which is unfair conduct on the part of the Respondent, leaving the discretion of the Respondent open for scrutiny.
29. The application of the Applicant was subjected to the discretion of the HOD but that discretion has to be exercised in a just and reasonable manner, which in my view, the Respondent failed to do. In Solidarity obo Oelofse v Armscor (SOC) Ltd and others (JR 2004/15) (handed down 21 February 2018) the Court cautioned, that the Employer still had to act fairly in exercising this discretion. There is no such thing as an unfettered discretion. In this regard, Section 186(2)(a) of the LRA reads: ‘’Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving — unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits to an employee. The Court in Oelofse referred to Apollo Tyres SA (Pty) Ltd v CCMA (2013) 34 ILJ 1120 (LAC) wherein the Court held: “… Therefore even where the employer enjoys a discretion in terms of a policy or practice relating to the provision of benefits such conduct will be subject to scrutiny, by the CCMA.” In Oelofse the Court referred further to Apollo Tyres SA (Pty) Ltd v CCMA the Court held:”…the better approach would be to interpret the term ‘benefit’ to include a right or entitlement to which the employee is entitled (ex contractu or ex lege, including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer's discretion….’benefit’ in s 186(2)(a)of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer's discretion.” With the performance bonus in casu thus being a benefit, and the discretion to be exercised by the Employer in awarding or not awarding such a benefit being subject to scrutiny based on what would be considered to be fair, the next most obvious question to be answered is under what circumstances the exercise of the discretion could indeed be seen to be unfair. A discretion would not have been exercised fairly if not judicially exercised and in particular had been influenced by wrong principles or a misdirection on the facts, or a decision is reached which could not reasonably have been made, having properly directed itself to all the relevant facts and principles. The Court in Oelofse held that the same considerations applicable in a promotion-matter should be applied when evaluating whether the exercise of an employer’s discretion in awarding, or not awarding for that matter, of benefits, would be considered fair or not. The Court concluded that the reasons for not awarding Oelofse the performance bonus not to be irrational, capricious, grossly unreasonable or mala fide and contrary to Apollo Tyres, there was no shifting of the goalposts. It held that the Employer simply applied the same criteria and considerations as contained in the Remuneration and Performance Practices, as it existed at the time.
30. If the Respondent simply applied the provisos described in the ELRC Resolution 7/2001 (hereafter referred to as the Resolution), Annexure A, par.9, Chapter H Section H.5.3 of the PAM document (Bundle A, page 107 - 110) and the PILIR Policy (Pages 116 – 123) correctly within the guidance of Item 10(1) of Schedule 8 of the Labour Relations Act, the Respondent could have awarded the Applicant the benefit of TIL, subject to scrutiny of all information submitted and obtained by the Respondent. The disapproval of Applicant’s TIL application as well as the reasons cited for the disapproval of her grievance, the Respondent failed to apply its mind when the decision was made and directs to the Respondent’s conduct in exercising its discretion. In interrogating whether the Respondent exercised its discretion in a fair manner, (provided that an Arbitrator should be reluctant to interfere with the exercise of a discretion, unless such was exercised in a manner which shows a failure to meet an objective standard and this may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended). The Respondent herein failed to apply its mind and exercised his discretion in a capricious manner after the Respondent did not comply with the stipulations and regulations of ELRC Resolution 7/2001 (Annexure A, par. 9), the PAM document Section H.5.3.10 and the PILIR policy section 7.1 and 7.2 to approve the TIL. Holistically viewed considering ELRC Resolution 7/2001 (Annexure A, par. 9), the PAM document Section H.5.3.10 and the PILIR policy section 7.1 and 7.2 to approve the TIL, the Respondent failed to meet an objective standard set by the Legislation, Policy and Regulations. The Respondent acted unfairly in exercising its discretion to decline the TIL for the period 03 December 2018 to 07 December 2018 which amounted to 5 days in an amount of R3 822.46.
AWARD
31. In the premises, the Respondent committed an unfair labour practice and is ordered to approve Temporary Incapacity Leave (TIL) and to reverse the leave without pay for the period 03 December 2018 to 07 December 2018 to the amount of R3 822.46. Such correction must be done on or before the 31st of August 2020.
32. The Respondent must pay interest on the amount due after 31 August 2020 and payable at the rate of interest prescribed in terms of section 1 of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), to the Applicant to whom payment should have been made.
Adv S Fourie
ELRC ARBITRATOR
10 July 2020
Province: Free State
Applicant: SAOU obo KHOEELE ML
Respondent: Department of Education Free State
Issue: Unfair Labour Practice - Provision of Benefits
Venue: hearing was digitally held on the Zoom platform
Award Date: 10 July 2020
Arbitrator: Adv S Fourie
Commissioner: Adv S Fourie
Case No.:PSES428-19/20FS
Date of Award: 10 July 2020
In the ARBITRATION between:
SAOU obo KHOEELE ML
(Union / Applicant)
and
DEPARTMENT OF EDUCATION (Free State)
(Respondent)
Union/Applicant’s representative: Ms. H Human from the SAOU
Tel: 051 430 1531
Telefax: 051 430 1564
Email: hesterh@saou.co.za
Respondent’s representative: Mr. V Gubuza
Tel: 079 898 4433
Telefax:
Email: employeerelationsscanner@fseducation.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 186(2) (a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for Arbitration on the 24th of June 2020 and finalized on the 10th of July 2020. The Applicant was represented by Ms. H Human from the SAOU. Mr. V Gubuza an ER official from the Department of Education represented the Respondent. The parties were afforded the opportunity to present written heads of argument to be submitted by the 1st of July 2020. The hearing was digitally held on the Zoom platform and the process was digitally recorded. Parties requested the matter to be decided on paper and to be allowed to file written arguments in line with what they agreed to be in dispute.
2. Parties were allowed to present opening statements to narrow the issues to establish common cause facts and what the dispute relate to. Parties could not agree whether the despute related to the interpretation and application of Clause 9 of Resolution 7 of 2001 or whether it was a dispute related to an unfair labour practice in how the Respondent exercised its discretion. Parties also agreed to exchange written submissions and to present all to Council by the 1st of July 2020. Applicant had to submit by Friday 26 June 2020 and the Respondent by Monday 29 June 2020 where after the Applicant’s reply by 1 July 2020. The Respondent filed no submissions in respect of the jurisdictional point raised during the Zoom session and the Respondent failed to file its submissions in time but was taken into consideration.
BACKGROUND
3. The Applicant is employed by the Respondent since 1 April 1999 and currently a PL-1 educator at Matla Primary School. The Applicant applied for Temporary Incapacity Leave (TIL) in terms of the Chapter H of the PAM document and the Policy and Procedure on Incapacity leave and ill health retirement (hereafter referred to as the PILIR policy) due to the fact that her normal sick leave was insufficient to cover the entire period she booked off for after her operation. The Applicant was booked off from 13 November 2018 to 07 December 2018 on sick leave. According to the Respondent the Applicant’s application for paid TIL was partially approved. It was approved for the period of 13 November 2018 to 30 November 2018. According to the Applicant, the Respondent declined the total period of TIL she qualified for. The Respondent failed to apply the measures contained in the PAM and PILIR policy and failed to apply its mind when the Respondent decided to disapprove the Applicant’s application and as such subjected her to an unfair labour practice when they denied her a benefit for which she qualified. A formal dispute was referred to the ELRC on 19 August 2019. The purpose of this arbitration is to determine whether or not the Applicant qualified for the benefit she applied for and whether the Respondent followed the prescriptions of the above mentioned regulations and applied his mind when it decided to decline the Applicant’s application.
ISSUE TO BE DECIDED
4. Whether or not the Applicant qualified for the benefit she applied for and whether the Respondent followed the prescriptions of the above mentioned regulations and applied his mind when he decided to decline the Applicant’s application.
SURVEY OF EVIDENCE AND ARGUMENT
5. For purposes of this award, I do not intend, to record verbatim the evidence led, the submissions made and or the arguments raised on record. Only the prominent points raised by each party in their submissions that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence and submissions that were presented. The Applicant entered into evidence a bundle of documents, Bundle A with three volumes. Volume 1 pages 1 – 61, Volume 2 pages 62 – 120 and Volume 3 pages 121 – 170. The Respondent submitted no bundle of documents. Parties presented opening statements to narrow the issues where after they presented their arguments in writing of which their written submission forms part of the official record.
APPLICANT’S VERSION AND SUBMISSIONS
6. Hester Human (Human) presented the following submissions: On 13 November 2018 the Applicant had carpal tunnel surgery done on her dominant hand (See page 64). Dr. EM Visser, an orthopedic surgeon, performed the surgery at Rosepark Life Hospital. She applied for temporary incapacity leave (TIL) for the period 13 November 2018 to 07 December 2018 (See pages 47 – 73). The Respondent did not question any of the documents submitted and neither did they request any additional information or referred the Applicant for a second opinion.
7. The new sick leave cycle commenced on 01 January 2019 and as such the Applicant was accredited with 36 working days sick leave (See page 82 of the Applicants Bundle. It is a persal printout dated 18 October 2019). The current leave cycle expires on 31 December 2021. The previous sick leave cycle commenced on 01 January 2016 and expired on 31 December 2018. According to her persal printout, on 12 November 2018, the day before her sick leave commenced, the Applicant used 22 days sick leave and had 14 days sick leave left (See page 83 and 84 of the Applicant’s bundle). The period 13 November 2018 to 30 November 2018 amounts to 14 days sick leave. Sick leave to which the Applicant is entitled to in terms of the PAM document (See Applicant’s 3 Bundle page 105 Section H.5.2). The Applicant was awarded this period as normal sick leave and in essence applied for TIL for the period 03 December 2018 to 07 December 2018 which amounted to 5 days. The total period for which she was booked off was 19 working days.
8. On 09 May 2019 the Principal handed the Applicant a document dated 11 March 2019 which document stated that her TIL application was only partially approved and that the period of 03 December 2018 to 07 December 2018 has been declined. According to the document, the Applicant’s TIL application was only partially approved due to the following reasons: 1) Excessive duration - the period she was booked off was deemed excessive for the diagnoses, and 2) Should be able to perform adapted duties – the information received did not indicate whether the Applicant was totally incapacitated during the period of absence. The document provided her with the option of lodging a formal grievance. The latter, according to the document had to be submitted by 12 April 2019 (See pages 73 to 76). The Applicant lodged a formal grievance on 15 May 2019 (See pages 77 - 79). In the grievance she explained that she was initially booked off until 03 December 2018 but that she returned to the doctor as she was still unable to use her hand. She was then booked off for a further period until 07 December 2018.
9. On 10 July 2019 the Respondent informed the Applicant that her grievance was unsuccessful (See page 80). The document stated the following: 1) The HOD reviewed and assessed her application and declined it because there was no specialist report submitted with the application, and 2) she had the opportunity to lodge a grievance and that was also declined. On 31 July 2019 leave without pay was deducted from the Applicant’s salary for the period 03 December 2018 to 07 December 2018 (See page 81).
10. According to the Labour Relations Act, No 66 of 1995 (hereafter referred to as the LRA), section 186(2), the definition of an unfair labour practice is: “Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving inter alia unfair conduct by the employer relating to the 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. The Applicant applied for a benefit, Temporary Incapacity Leave (TIL). Such leave can be applied for when an employee depleted his/her normal sick leave, in terms of the following Policy, Collective Agreement and Legislation: 1) Policy and Procedure on Incapacity Leave and Ill-health Retirement (PILIR), April 2009 (See pages 112 – 140), 2) ELRC Resolution 7 of 2001 (See page 86 – 104) and 3) Personnel Administrative Measures (PAM) published on 12 February 2016 in Government Gazette No. 19767 (See pages 105 -111).
11. The Applicant’s normal sick leave was depleted on 30 November 2018. She applied for temporary incapacity leave (TIL) for the period 13 November 2018 to 07 December 2018 (See pages 47 – 73). The employer did not question any of the documents submitted and neither did they request any additional information or referred the employee for a second opinion. The new sick leave cycle commenced on 01 January 2019 and as such the Applicant was accredited with 36 working days sick leave (See page 82 of the Applicants Bundle. It is a persal printout dated 18 October 2019). The current leave cycle expires on 31 December 2021. The previous sick leave cycle commenced on 01 January 2016 and expired on 31 December 2018. According to the Applicant’s persal printout, on 12 November 2018, the day before her sick leave commenced, the Applicant had used 22 days sick leave and had 14 days sick leave left (See page 83 and 84 of the Applicant’s bundle). The period 13 November 2018 to 30 November 2018 amounts to 14 days sick leave. Sick leave to which the Applicant is entitled to in terms of the PAM document (See Applicant’s 3 Bundle page 105 Section H.5.2). The Applicant was awarded this period as normal sick leave. In essence, she applied for TIL for the period 03 December 2018 to 07 December 2018 which amounted to 5 days. The total period for which she was booked off was 19 working days.
12. In terms of PAM, Section H.5.2, the Applicant was entitled to 36 days’ paid sick leave for the period 01 January 2016 to 31 December 2018. These days were given to the Applicant as stated by her leave persal record (See pages 82 – 85). H.5.3.2 of the Pam states that “An educator whose normal sick leave credits in a three year-cycle (36 days), have been exhausted during the prescribed sick leave cycle, and who, according to the relevant practitioner, requires to be absent from work due to a temporary incapacity may apply for temporary incapacity leave with full pay on the applicable application form prescribed by in terms of PILIR in respect of each occasion. “ Thus even though the Applicant applied for the period 13 November 2018 to 7 December 2018, the period of 13 November 2018 to 30 November 2018 was awarded to the Applicant and deducted from her normal sick leave after which the latter was depleted. The Applicant thus essentially applied for TIL for the period 3 December 2018 to 7 December 2018, which is 5 working days.
13. The PILIR Policy (See Bundle A page 112 -140) and Chapter H section H.5.3 of the PAM document (See Bundle A page 107 - 110) applied to the Applicant and the Respondent failed to adhere to the regulations set out in these documents and did not apply its mind in making the decision to disapprove the Applicant’s TIL application. The purpose of the regulations contained in these documents is to put in place additional leave measures when an employee’s normal sick leave has been depleted. Clause 5.3 of the PILIR policy (See page 117 of the Applicant’s Bundle) states that the mission of the policy is to “adopt a scientific approach to health risk management based on sound medical, actuarial and legal principles.”
14. The Respondent would argue that the information sent to the Health Risk Manager is the second opinion mentioned in these documents. However, the PAM document is clear on the procedure to be followed: 1) H.5.3.3.1 The educator must submit medical proof that he/she is too ill/injured to perform his/her work satisfactorily. 2) H.5.3.3.4 states that the employee is required to give his/her consent that medical information or records can be disclosed to the Health Risk Manager and undergo further medical examinations. 3) H.5.3.8 requires the employer to within 5 working days of receipt of the application grant the employee TIL conditionally for a period of 30 days and refer the application together with all the documentation to the Health Risk Manager for assessment. The Health Risk Manager is clearly part of the process and not an optional second opinion that the HOD can utilize when the need arises. After H.5.3.8 which explains that once the TIL application has been submitted to the employer and the employer has sent it to the Health Risk Manager for assessment, H.5.3.9 continues to state that the HOD may require the employee to undergo a second assessment by medical practitioners of his choice, which is another tool at his disposal to gather enough information to make an informed decision. Page 4 of the PILIR policy (See page 114 of the Applicant’s Bundle) also defines the Health Risk Manager as a “juristic person appointed by the Employer to advise on the granting of incapacity leave and ill-health retirement of employee”. It does not state that it is a board of medical practitioners that the Employer makes use of when he needs a second opinion.
15. There is no proof that the Respondent investigated, considered and presented the Applicant with proposals to adapt her duties making it possible for her to return to work at an earlier time. H.5.3.12 of the Pam document states that the HOD must (own emphasis) as soon as possible after receiving the advice from the Health Risk Manager, and if applicable, decide on the possibility of adapting her duties to accommodate the employees illness or injury or provide alternative employment and “as soon as possible approve and implement an action plan for this purpose”. The Health Risk Manager clearly felt that adapted duties should have been possible, yet there was no proposals of adapted duties, alternative employment offers or actions plans presented on paper despite it being required by the PAM document from the Respondent. In this case, the TIL applied for, would have lapsed by the time the Respondent would have had to provide feedback in terms of the PAM document (30 working days). But even so, if the Respondent was aware of the complete process to be followed and they applied their mind to the process, they would have indicated that such a need was identified but that the Applicant’s TIL application ended before the Respondent could instate or implement an action plan.
16. The reasons cited for the disapproval of her TIL application as well as the reasons cited for the disapproval of her grievance, proves that the Respondent failed to apply its mind when he took the decision. According to the Respondent, the Applicant’s TIL application was only partially approved due to the following reasons: 1) Excessive duration - the period she was booked off was deemed excessive for the diagnoses and 2) she should be able to perform adapted duties – the information received did not indicate that the employee was totally incapacitated during the period of absence. The Applicant’s grievance was unsuccessful (See page 80) for the following reasons: 1) The HOD reviewed and assessed her application and declined it because there was no specialist report submitted with the application and 2) she had the opportunity to lodge a grievance and that was also declined.
17. Studying the reasons given for the declined grievance, the Respondent stated that her application had no specialist involvement and then it continues to state that she had an opportunity to lodge a grievance and that that was also declined. Cleary the Respondent has made a distinction between the reasons the TIL application was declined and the grievance. The lack of specialist involvement is thus also a reason why the TIL application was declined initially. In essence the Respondent did not provide any reason why the grievance was declined but simply stated:” she had an opportunity to lodge a grievance and that was also declined.
18. The PILIR policy on page 7 (Page 118 of the Applicant’s Bundle) number 7.1.5.1 states that for an employee’s TIL application to be considered, the employee must submit a medical certificate issued and signed by a medical practitioner. Neither the PAM nor the Resolution states that specialist involvement is a prerequisite for a TIL application. The reason cited for the disapproval of the Applicant’s TIL application is thus in contrast to that stated by the Policy, the Resolution and the PAM. Furthermore, the conduct of the Respondent is inconsistent. It approves the application of Mr. Coetzee where there was no specialist involved but disapproves the Applicant’s TIL application because there was no specialist involvement. For the period of 03 December 2018 to 07 December 2018, the period that was declined, the Applicant was booked of by a medical practitioner (See page 63 of the Applicant’s Bundle). For the period prior to that, she was indeed booked off by a specialist.
RESPONDENT’S VERSION
19. Mr Gubuza for the Respondent submitted that the Respondent applied his mind when he made a decision to decline the application stating the Applicant’s reason from staying away from work were indeed excessive. The time that was allocated to the Applicant to recuperate from the operation is longer than a patient that had underwent the same operation. The Respondent took the matter to the Health Risk Manager for a second opinion and the Health Risk Manager advised the Respondent that period was indeed excessive. The question to be decided is whether the Respondent decision not to grant the applicant temporary incapacity leave was arbitrarily and therefore unfair. The Respondent fully agree with the Applicant that the Resolution grants the HOD authority to approve or disapprove a TIL application of any employee. The HOD exercised his authority after perusal of all the necessary medical documents submitted by relevant persons and bodies that must advise him accordingly. The HOD decided to decline this application and the investigation was done in a fair and transparent manner.
20. The Applicant was even given an opportunity to lodge a grievance which was declined. The HOD applied his mind to the facts that were in front of him and made an appropriate decision which was fair. The reason for the declining the application was because the period for not reporting for duty was excessive. The Applicant is fully aware that during this 2016 - 2018 leave cycle, she had exhausted her sick leave day’s hence partial approval. It is actually 17 days not 14 as indicated by the Applicant for the 2019 -2021 cycle. Leave days cannot be used retrospectively. It is a fact that Applicant failed to report for duty on the said date, hence 5 days were not approved. In this matter the commissioner is not called upon to decide whether the Respondent failed in his interpretation and application of the relevant resolution but is called upon to make a ruling on whether the decision of the HOD to decline the TIL application of the Applicant was fair or not. The Respondent in applying his mind took all the relevant documents into account when reaching the decision not to grants temporary incapacity leave. The Respondent subjects every employee to the same treatment through a resolution which both Respondent and Applicant agrees that it is governing temporary incapacity leave and Respondent subjected Applicant to the same.
ANALYSIS OF EVIDENCE AND ARGUMENT
21. I must decide on whether the Respondent followed all the processes described in the ELRC Resolution 7/2001 (hereafter referred to as the Resolution), Annexure A, par.9, Chapter H Section H.5.3 of the PAM document (Bundle A, page 107 - 110) and the PILIR Policy (Pages 116 – 123) correctly. I must also decide whether the Respondent applied his mind when he made the decision to disapprove the Applicant’s application. The ELRC Resolution and the PILIR Policy refers to Item 10(1) of Schedule 8 of the Labour Relations Act which stipulates the following: (1) Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee’s disability. Thus, based on this, the Respondent had the responsibility to investigate the application and while investigating the application determine: 1) the extent of the Applicant’s inability to perform her normal duties, and 2) the possibility to adapt her duties.
22. It is common cause, that the Applicant applied for TIL and that her application was accepted. During the opening statements, the Respondent also stated that the decision taken by the HOD was based on the recommendation by the Health Risk Manager and they alleged that they followed all the prescripts of the PILIR Policy and the PAM document. It is common cause that the period 13 November 2018 to 30 November 2018 amounts to 14 days sick leave to which the Applicant is entitled to in terms of the PAM document (See Applicant’s 3 Bundle page 105 Section H.5.2). The Applicant was awarded this period as normal sick leave. In essence, she applied for TIL for the period 03 December 2018 to 07 December 2018 which amounted to 5 days. The total period for which she was booked off was 19 working days. It is also common cause that in terms of PAM, Section H.5.2, the Applicant was entitled to 36 days’ paid sick leave for the period 01 January 2016 to 31 December 2018. These days were given to the Applicant as stated by her leave persal record (See pages 82 – 85). H.5.3.2 of the Pam states that “An educator whose normal sick leave credits in a three year-cycle (36 days), have been exhausted during the prescribed sick leave cycle, and who, according to the relevant practitioner, requires to be absent from work due to a temporary incapacity may apply for temporary incapacity leave with full pay on the applicable application form prescribed by in terms of PILIR in respect of each occasion. “ Thus even though the Applicant applied for the period 13 November 2018 to 7 December 2018, the period of 13 November 2018 to 30 November 2018 was awarded to the Applicant and deducted from her normal sick leave after which the latter was depleted. The Applicant thus essentially applied for TIL for the period 3 December 2018 to 7 December 2018, which is 5 working days. It is also common cause that the conditions to be met and the process to be followed in relation to Temporary Incapacity Leave (TIL), is described in the PILIR Policy, Chapter 5 of the Pam document and ELRC Resolution 7 of 2001, Annexure A section 9. Common sense dictate that these three documents should be read in conjunction with each other and do not stand in isolation to each other.
23. I must decide whether the Respondent followed all the processes described in the ELRC Resolution 7/2001 (hereafter referred to as the Resolution), Annexure A, par.9, Chapter H Section H.5.3 of the PAM document (Bundle A, page 107 - 110) and the PILIR Policy (Pages 116 – 123) correctly. The Resolution and the PILIR Policy refers to Item 10(1) of Schedule 8 of the Labour Relations Act which stipulates the following: (1) Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee’s disability. Based on this, the Respondent had the responsibility to investigate the application and while investigating the application, determine the extent of the Applicant’s inability to perform her normal duties and the possibility to adapt her duties. In addition, section 7.1 and 7.2 of the PILIR Policy reiterates item 10(1) of Schedule 8 of the LRA namely that it is the responsibility of the Respondent to investigate the TIL application. The reasons cited for the disapproval of her TIL application as well as the reasons cited for the disapproval of the Applicant’s grievance, will be dealt with hereunder.
24. Clause 9.5 of the ELRC Resolution grants the HOD the authority to approve or disapprove the TIL application of an employee and H.5.3.10 of the PAM document states that this decision is subject to the HOD applying his or her mind. When deciding, the HOD must consider the following: “the medical certificate (with or without it describing the nature and extent of the illness or injury), medical information/records, the Health Risk Manager’s advice, the information as supplied by the educator and all other relevant information available to the HOD. Then based thereon, approve or refuse the temporary incapacity leave granted conditionally, on conditions that the HOD may determine. From the evidence, there is no proof that the HOD, other than that it considered the recommendations of the Health Risk Manager, admitted by the Respondent, considered any of the other documents submitted. The HOD did not make use of the option (offered to him by the Agreement), for the Applicant to submit a second opinion. Clause 9.4 of the Resolution states that an investigation must be conducted into the nature and extent of the incapacity and that this investigation will be conducted in accordance with item 10(1) of Schedule 8 of the Labour Relations act, 1995.
25. The Applicant signed a consent form to be subjected for a second medical opinion (See page 50 of the Applicant’s Bundle), which gave the Respondent consent to subject the Applicant to examination by medical doctors of their choice. If the Respondent doubted the validity of her application and/or the extent of her incapacity, the Respondent must substantiate, after investigations that the Applicant was not truthful, or her medical practitioner was inept or that she was booked off for excessive periods. However the Respondent failed to request the Applicant to consult doctors or for that matter specialists of their choice, to determine the extent of her incapacity. The decision to decline the Applicant’s TIL application for the period 03 December 2018 to 07 December 2018 in my view was capricious, since no second opinion was obtained from a doctor of their choice to establish whether the Applicant was booked off incorrectly. Where an employee is booked of by a medical doctor and the Health Risk Manager are of a different view to what the medical doctor directed, the HOD in my view, to exercise its discretion objectively, must request a second opinion to be in a position to gather the necessary medical evidence (being the investigating period) in relation to the directive in terms of paragraph H.5.3.11 of the PAM. The directive states that: the HOD may on the basis of medical evidence gathered during its investigation approve the granting of additional incapacity leave on conditions that he/she must determine. The HOD may for this purpose grant conditionally further temporary incapacity leave.
26. In casu, the doctor booked the Applicant off for an additional period 03 December 2018 to 07 December 2018, which is the period the Applicant applied for as TIL. The Health Risk Manager was of the opinion that this was excessive and not necessary leaving the HOD with two conflicting findings in front of him of different medical professionals, and failed to request a second opinion as directed by clause 9.3 of the Resolution and H.5.3.9 of the Pam document. H.5.3.3.4 of the PAM states that the employee is required to give his/her consent that medical information or records can be disclosed to the Health Risk Manager and undergo further medical examinations which directs to a second opinion. The Health Risk Manager’s view, cannot be construed as a second opinion although the HOD may attach weight to it to obtain a second opinion from a medical doctor of their choice. Thus considering the old saying, compare “apples with apples”, the HOD could easily compare two medical doctors in exercising its discretion.
27. In Aries v CCMA and others (2006) 27 ILJ 2324 (LC) the Court held that there are limited grounds on which an arbitrator, or a Court may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The Court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner. In casu, the Respondent did not exercise its discretion properly considering the weight it attached to the Health Risk Practitioner’s view. Clause 5.3 of the PILIR policy (See page 117 of the Applicant’s Bundle) states that the mission of the policy is to “adopt a scientific approach to health risk management based on sound medical, actuarial and legal principles.” Page 4 of the PILIR policy (See page 114 of the Applicant’s Bundle) also defines the Health Risk Manager as a “juristic person appointed by the Employer to advise on the granting of incapacity leave and ill-health retirement of employee”. The Health Risk Manager is not a medical practitioner for the Respondent to utilize when he/she needs a second opinion.
28. The reasons cited for the disapproval of her TIL application as well as the reasons cited for the disapproval of her grievance, proves that the Respondent failed to apply its mind and to obtain further information when it exercised its discretion when the decision was made. According to the Respondent, the Applicant’s TIL application was only partially approved due to the following reasons: 1) Excessive duration - the period she was booked off was deemed excessive for the diagnoses and 2) she should be able to perform adapted duties. The Applicant’s grievance was unsuccessful for the following reasons: 1) The HOD reviewed and assessed her application and declined it because there was no specialist report submitted with the application and 2) she had the opportunity to lodge a grievance and that was also declined. The first reason of the application, the excessive duration - the period she was booked off was deemed excessive for the diagnoses and the first reason for the grievance that there was no specialist report submitted with the application, show the improper conduct. No second opinion was requested from the Applicant which was easily obtainable because the Respondent could merely request same. The Respondent ignored the stipulations of the PILIR Policy, H.5 of the Pam and the ELRC Resolution when it did not investigate the Applicant’s TIL application which lead to a poor assessment thereof in terms of the standard set, which is unfair conduct on the part of the Respondent, leaving the discretion of the Respondent open for scrutiny.
29. The application of the Applicant was subjected to the discretion of the HOD but that discretion has to be exercised in a just and reasonable manner, which in my view, the Respondent failed to do. In Solidarity obo Oelofse v Armscor (SOC) Ltd and others (JR 2004/15) (handed down 21 February 2018) the Court cautioned, that the Employer still had to act fairly in exercising this discretion. There is no such thing as an unfettered discretion. In this regard, Section 186(2)(a) of the LRA reads: ‘’Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving — unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits to an employee. The Court in Oelofse referred to Apollo Tyres SA (Pty) Ltd v CCMA (2013) 34 ILJ 1120 (LAC) wherein the Court held: “… Therefore even where the employer enjoys a discretion in terms of a policy or practice relating to the provision of benefits such conduct will be subject to scrutiny, by the CCMA.” In Oelofse the Court referred further to Apollo Tyres SA (Pty) Ltd v CCMA the Court held:”…the better approach would be to interpret the term ‘benefit’ to include a right or entitlement to which the employee is entitled (ex contractu or ex lege, including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer's discretion….’benefit’ in s 186(2)(a)of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer's discretion.” With the performance bonus in casu thus being a benefit, and the discretion to be exercised by the Employer in awarding or not awarding such a benefit being subject to scrutiny based on what would be considered to be fair, the next most obvious question to be answered is under what circumstances the exercise of the discretion could indeed be seen to be unfair. A discretion would not have been exercised fairly if not judicially exercised and in particular had been influenced by wrong principles or a misdirection on the facts, or a decision is reached which could not reasonably have been made, having properly directed itself to all the relevant facts and principles. The Court in Oelofse held that the same considerations applicable in a promotion-matter should be applied when evaluating whether the exercise of an employer’s discretion in awarding, or not awarding for that matter, of benefits, would be considered fair or not. The Court concluded that the reasons for not awarding Oelofse the performance bonus not to be irrational, capricious, grossly unreasonable or mala fide and contrary to Apollo Tyres, there was no shifting of the goalposts. It held that the Employer simply applied the same criteria and considerations as contained in the Remuneration and Performance Practices, as it existed at the time.
30. If the Respondent simply applied the provisos described in the ELRC Resolution 7/2001 (hereafter referred to as the Resolution), Annexure A, par.9, Chapter H Section H.5.3 of the PAM document (Bundle A, page 107 - 110) and the PILIR Policy (Pages 116 – 123) correctly within the guidance of Item 10(1) of Schedule 8 of the Labour Relations Act, the Respondent could have awarded the Applicant the benefit of TIL, subject to scrutiny of all information submitted and obtained by the Respondent. The disapproval of Applicant’s TIL application as well as the reasons cited for the disapproval of her grievance, the Respondent failed to apply its mind when the decision was made and directs to the Respondent’s conduct in exercising its discretion. In interrogating whether the Respondent exercised its discretion in a fair manner, (provided that an Arbitrator should be reluctant to interfere with the exercise of a discretion, unless such was exercised in a manner which shows a failure to meet an objective standard and this may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended). The Respondent herein failed to apply its mind and exercised his discretion in a capricious manner after the Respondent did not comply with the stipulations and regulations of ELRC Resolution 7/2001 (Annexure A, par. 9), the PAM document Section H.5.3.10 and the PILIR policy section 7.1 and 7.2 to approve the TIL. Holistically viewed considering ELRC Resolution 7/2001 (Annexure A, par. 9), the PAM document Section H.5.3.10 and the PILIR policy section 7.1 and 7.2 to approve the TIL, the Respondent failed to meet an objective standard set by the Legislation, Policy and Regulations. The Respondent acted unfairly in exercising its discretion to decline the TIL for the period 03 December 2018 to 07 December 2018 which amounted to 5 days in an amount of R3 822.46.
AWARD
31. In the premises, the Respondent committed an unfair labour practice and is ordered to approve Temporary Incapacity Leave (TIL) and to reverse the leave without pay for the period 03 December 2018 to 07 December 2018 to the amount of R3 822.46. Such correction must be done on or before the 31st of August 2020.
32. The Respondent must pay interest on the amount due after 31 August 2020 and payable at the rate of interest prescribed in terms of section 1 of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), to the Applicant to whom payment should have been made.
Adv S Fourie
ELRC ARBITRATOR
10 July 2020