ELRC543-21/22EC

Panelist: Jonathan Gruss
Case No.: ELRC543-21/22EC
Date of Award: 6 October 2022

In the ARBITRATION between:

NAPTOSA obo Ludwe Eric Mazwi (Applicant)

and

Department of Education – Eastern Cape
(Respondent)

Applicant’s representative: Adv Saayman - NAPTOSA

Email : saaymangavin@gmail.com


Respondent’s representative: Mr Jacobs

Email: garthjacobs@rocketmail.coma

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 24(5) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 68 of the ELRC Constitution : Dispute Resolution Procedures (Collective Agreement No. 6 of 2016). The hearing was held via Zoom on 9 December 2021 and the proceedings were electronically recorded. The applicant, Ludwe Eric Mazwi was represented by Adv Saayman from NAPTOSA. The respondent, Department of Education : Eastern Cape were represented by Mr Jacobs, a labour relation officer. The parties agreed to submit written closing arguments by no later than 27 September 2022..

ISSUE TO BE DECIDED
2. A dispute concerns the interpretation application and enforcement of ELRC Resolution 7 of 2001 and Paragraph 5.3.10 of Personnel Administration Measurements (PAM) Chapter H in that the (1) Respondent allegedly failed to within 30 days of receipt of the applicant’s temporary incapacity leave (TIL) applications and medical certificates, approve or disapprove the TIL applied for that was conditionally granted while the application was being investigated and (2) failed to conduct an investigation in accordance with item 10(1) of Schedule 8 of the LRA into the nature and extent of the incapacity.

BACKGROUND TO THE ISSUES

3. The following facts are common cause:
3.1 The applicant commenced employment on 1 January 1991. When the applicant was booked off sick he was a Senior Education Specialist, office based educator responsible for HIV / Aids and Life Skills in the Amathole West District in Fort Beaufort. The applicant exhausted his 36 statutory sick leave cycle on 1 August 2019. He was booked off sick on 10 June 2019.

3.2 The following period of Temporary Incapacity Leave were submitted by the applicant:

3.2.1 For the absence period 1 August 2019 to 9 September 2019 (27 days), the applicant was notified of the outcome of his application on 2 June 2021, the Head of Department took the decision not to grant TIL on 27 May 2021. The TIL application was submitted to the District Office on 23 July 2019.
3.2.1 For the absence period 10 September 2019 to 25 October 2019 (33 days), the applicant was notified of the outcome of his application on 2 June 2021, the Head of Department took the decision not to grant TIL on 27 May 2021. The TIL application was submitted on 9 September 2019 to the District Office. SONA, the Health Risk Manager only received the application 18 February 2020.
3.2.3 For the absence period 19 December 2019 to 31 January 2020 (27 days), the applicant was notified of the outcome of his application on 2 June 2021.The Head of Department took the decision not to grant TIL on 27 May 2021. The applicant submitted his TIL application to the District Office 18 December 2019.
3.2.4 For the absence period 3 February 2020 to 19 March 2020 (34 days), the applicant was notified of the outcome of his application on 2 June 2021, the Head of Department took the decision not to grant TIL on 27 May 2021. The applicant submitted his application to the District Office on 5 February 2020.
3.2.5 For the absence period 20 March 2020 to 14 April 2020 (36 days), the applicant was notified of the outcome of his application on 2 June 2021, the Head of Department on 27 May 2021 took the decision not to grant TIL on 27 May 2021. The applicant submitted his application to the District Office on 20 March 2020.
3.2.6 For the absence period 15 April 2020 to 30 June 2020 (32 days), the applicant was notified of the outcome of his application on 2 June 2021. SOMA received the TIL application on 5 November for assessment from the respondent.
3.2.7 For the absence period 1 July 2020 to 18 August 2020 (34 days), the applicant was notified of the outcome of his application on 2 July 2021. The applicant submitted his TIL application to the District Office on 2 July 2020 and the Head of Department took the decision not to grant TIL on 27 May 2021. The TIL application was submitted to the District Office on 2 July 2020 and the application was only sent to SOMA for assessment on 2 November 2020.
3.2.8 For the absence period 19 August 2020 to 1 September 2020 (31 days), the applicant was notified of the outcome of his application on 2 June 2021. The applicant submitted his application to the District Office on 23 August 2020. The TIL application was sent to SONA for assessment on 5 November 2020.
3.2.9 For the absence period 2 October 2020 to 19 November 2020 (35 days), the applicant was notified of the outcome of his application on 2 June 2021. The applicant submitted his TIL application to the District Office on 4 October 2020. The TIL application was sent to SONA for assessment on 27 November 2020.
3.2.10 and for the absence period 20 November 2020 to 26 January 2021 (45 days), the applicant was notified of the outcome of his application on 2 June 2021. The applicant submitted his application to the District Office on 23 November 2020. The TIL application was received by SONA for assessment on 14 December 2020.

3.3 The applicant returned to work on 27 January 2021.

3.4 According to the report submitted by SOMA iNitiative (Health Risk Manager) under the heading Resource and Data Assimilation for the period 20 March 2020 to 14 May 2020 the following was recorded:
• Confidential report dated 24 June 2019, completed by Ms L Gunter, Occupational Therapist, indicated that the employee was admitted to hospital on 17 June 2019 under the management of his Psychiatrist. It was noted that he reported experiencing vocational distress as a result of what he indicated were unfair labour practices. His significant work-related stress and the deterioration of his relationship with his superiors reportedly adversely affected his completion of daily activities. It was stated that he was unable to fulfil his work-related duties at the time of the assessment in June 2019 due to cognitive deficits and that he required ongoing psychiatric intervention from the multidisciplinary team. It was believed that his relationships with his superiors could not be salvaged and that he should be considered for a transfer to Port Elizabeth.
• SOMA notes that it was indicated in a note completed by Dr Crafford, Psychiatrist, dated 12 December 2019, that the employee was engaged in legal proceedings against the Department of Education and would not be fit for work until his grievances has been
appropriately resolved.
• An occupational therapy report dated 19 November 2019, completed by Ms C Michau, Occupational Therapist, indicated that since his discharge from hospital in June 2019, the employee had been living with his family in Port Elizabeth. This access to his support system had, according to the employee, allowed for an improvement in his well-being and ability to function; although he noted some residual forgetfulness. The details of his ongoing vocational distress were outlined, including the arbitration process, and it was stated by the employee that returning to these unsatisfactory work conditions would perpetuate his illness. The employee indicated that he would not reintegrate into his work environment until the arbitration process had been finalised as he wanted to maintain his mental and emotional well-being. The Occupational Therapist was of the opinion that the employee should not be expected to return to work whilst the process had not been finalised, but that once the arbitration was complete, he should be reintegrated into the work sphere.
• An email addressed to Dr Crafford, indicating that an account had been settled by Mr H Colllen.
• Mandatory statements as included in the submitted Annexure B reports (which are largely unchanged for all five applications for long period temporary incapacity leave under review) indicated that the employee had been diagnosed with Major Depressive Disorder as a result of the stress caused by perceived unfair labour practices. He consulted a Psychologist, who referred him to a Psychiatrist, and he was admitted for five days of inpatient treatment. The employee noted that his completion of his activities of daily living was stable and some areas done with enthusiasm. According to his Psychiatrist, following his discharge from hospital an initial check-up one month thereafter, the employee consulted on a roughly six-weekly basis. The employee's condition was as a result of not being promoted to a position that he applied for, and he had reportedly registered a grievance in this regard on 2 July 2019. His medication was noted to include Paroxetine 20mg nocte and Zolpidem 10mg nocte. His occupational prognosis was indicated to be dependent on the outcome and speed of the resolution of his grievance, and the transfer to a post in Port Elizabeth. His main limiting factors were indicated to be demotivation and impaired cognition. It was noted that his case was postponed until May 2020 and then again until 28 August 2020 and therefore he remained unable to return to work.
• The first two pages of an occupational therapy assessment report following a follow-up assessment on 13 July 2020, completed by Ms R Groenmeyer, Occupational Therapist, which indicated that the employee appeared motivated to return to work, in a different department, and that he had continued monthly consultations with his Psychiatrist but had not consulted his Psychologist since December 2019.

SOMA RECOMMENDATION

• Following careful analysis of this application, SOMA is of the opinion that Mr Mazwi's application for long period temporary incapacity leave should be declined.

• SOMA has thoroughly perused the information provided in support of this and the concurrently assessed applications for temporary incapacity leave for the period 1 August 2019 to 1 October 2020, a continuous absence which follows on from the employee's initial absence on 13 June 2019. We note that this absence was indicated to have been reportedly required on the basis of symptoms of Major Depression for which the employee initially consulted a Psychologist and then a Psychiatrist, and for which he was admitted for five days of treatment in June 2019. It is further noted that the employee's condition was reported to have been precipitated and perpetuated by ongoing, unresolved work-related conflict which had been filed as a grievance in July 2019, and which by 28 August 2020 had seemingly still not been resolved. Mr Mazwi's condition, by his own account and on assessment in 2020 by an Occupational Therapist, had improved due to his living in Port Elizabeth with his family and his extrication from his work environment. It was stated that he required a transfer to Port Elizabeth and would not return to work until the arbitration process had been completed. He was consulting his Psychiatrist on a more-or-less monthly basis, often less frequently than this, and stopped seeing his Psychologist in December 2019.

• With regard to this absence, both this specific period and the employee's absence in its entirety, SOMA is of the opinion that this falls within the remit of the labour relations department and not within the scope of PILIR and temporary incapacity leave, which is intended for absences where an individual is rendered significantly vocationally incapacitated as a result of serious medical or psychiatric pathology. In this context, whilst acknowledging the employee's diagnosis, there is insufficient evidence to suggest that he was precluded from all work-related duties over this period as a result thereof given the lack of evidence of intensive, multidisciplinary team intervention having been required. It must be noted that paid temporary incapacity leave is not intended for employee's to continue to avoid unfavourable work environments, and in situations where this appears to have been the case, we are not able to recommend that such leave be allocated. Accordingly, we refer this and the accompanying to the labour department and recommend that this application be declined.

The respondent’s decision in refusing incapacity leave:
• The Department has thoroughly perused the information provided in support of this and the concurrently assessed applications for temporary incapacity leave for the period 1 August 2019 to 1 October 2020, a continuous absence which follows on from your initial absence on 13 June 2019. We note that this absence was indicated to have been reportedly required on the basis of symptoms of Major Depression for which you initially consulted a Psychologist and then a Psychiatrist, and for which you were admitted for five days of treatment in June 2019. It is further noted that your condition was reported to have been precipitated and perpetuated by ongoing, unresolved work-related conflict which had been filed as a grievance in July 2019, and which by 28 August 2020 had seemingly still not been resolved. Your condition, by your own account and on assessment in 2020 by an Occupational Therapist, had improved due to you living in Port Elizabeth with your family and your extrication from your work environment. It was stated that you required a transfer to Port Elizabeth and would not return to work until the arbitration process had been completed. You were consulting his Psychiatrist on a more-or-less monthly basis, often less frequently than this, and stopped seeing your Psychologist in December 2019.

• With regard to this absence, both this specific period and your absence in its entirety, the Department is of the opinion that this falls within the remit of the labour relations department and not within the scope of PILIR and temporary incapacity leave, which is intended for absences where an individual is rendered significantly vocationally incapacitated as a result of serious medical or psychiatric pathology. In this context, whilst acknowledging your diagnosis, there is insufficient evidence to suggest that you were precluded from all work-related duties over this period as a result thereof given the lack of evidence of intensive, multidisciplinary team intervention having been required. It must be noted that paid temporary incapacity leave is not intended for employee's to continue to avoid unfavourable work environments, and in situations where this appears to have been the case, we are not able to allocate such leave. Accordingly, we refer this and the accompanying applications to the labour department and have declined this application.


4. The applicant submits based on the letter declining his TIL applications the respondent should have requested a second opinion and the decision should have been taken within 30 days. The respondent argued as relates to the interpretation that they did not have to send the applicant for second opinion

SURVEY OF EVIDENCE

5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the arguments contained and considered in deciding this matter.

APPLICANT’S EVIDNECE

6. The applicant testified under oath to the following effect.

6.1 As it relates to the periods that he applied for TIL that was declined, he submitted his applications within 5 days as prescribed and the respondent failed to have him assessed within 30 days and therefore considering the failure of the respondent to comply with time period, he was prejudiced.

6.2 Under cross-examination, the respondent indicated that for the periods 20 March 2020 to 30 June 2020, South Africa was under harsh lockdown and this meant that the period of absence should have not been covered by TIL. The respondent further indicated that the delay in processing the application was due to Covid 19 lock down that resulted in a backlog of TIL applications been assessed by SONA.

ANALYSIS OF EVIDENCE AND ARGUMENT

7 Clause 68 of the Dispute Resolution Procedures provides that a party to a dispute about the interpretation or application, or non-compliance of a collective agreement including the provisions of BCEA may refer such dispute to conciliation and arbitration in terms of these procedures.

8 Clause 69.1 also provides that the General Secretary may promote, monitor and enforce compliance with any Collective Agreement of the Council, within the scope of the Council and in terms of this section 33 and section 33A of the Act.

9 Clause 69.2 provides that a Collective Agreement of the Council is deemed to include:

9.1 Any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA; and

9.2 subject to clause 7.5, any other basic condition in the BCEA applicable to an employee falling within the scope of the Council where such employee's employer is a party to the Council;

10 Clause 69.3 provides that where the general secretary acts in terms of this clause 69, and the matter also involves the interpretation or application of a collective agreement, this clause 24 applies to the exclusion of clause 8.

11 Clause 69.5 further provides that the General Secretary may on his own discretion or on the request of a party refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be.

12 Clause 69.6 also provides that a panellist, conducting arbitration in terms of this clause 69 and section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.

13 Clause 69.7 provides that Section 138 of the Act, read with the changes required by the context, applies to any arbitration conducted in terms of this section.

14 The purpose ELRC Collective Agreement 7 of 2001 is to agree on new leave measures that will replace the leave regulations and to provide for the overtime remuneration of educators who perform childcare duties during periods of leave at institutions responsible for learners with behavior disorder.

15 Clause 9.1 to 9.6 provides that an educator who has exhausted her or his sick leave credit in a three year cycle and who, according to the relevant medical practitioner, requires to be absent due to incapacity that is not permanent may be granted additional sick leave with full pay. Such condition must have been certified in advance by the attending medical practitioner as a temporary incapacity set where conditions do not permit. The Head of Department may require the educator to obtain a second opinion before granting approval for additional sick leave. Expenditure in this regard will be met from the departmental budget. The Head of Department may grant a maximum of 30 consecutive working days leave with full pay during which period an investigation must be conducted into the nature and extent of the incapacity. The investigation shall be conducted in accordance with item 10 (1) of Schedule 8 of the Labour Relations Act, 1995. On the basis of medical evidence, the Head of Department may approve the granting of additional sick leave days on conditions that she or he shall determine. If the educator is of the view that she or he has been unfairly treated as regards the granting of additional sick leave, she or he has a right to follow the grievance procedure and the relevant dispute resolution procedure in order to settle the matter.

16 PAM paragraphs H.5.3 (temporary incapacity leave) mirrors the temporary incapacity leave provisions as contained in ELRC Collective Agreement 7 of 2001 although additional prescripts and measures are provided for. For instance, paragraph H.5.3.10 provides that “the Head of Department (HoD) must, within 30 working days after receipt of both the application form and the medical certificate, approve or refuse temporary incapacity leave granted conditionally. In making a decision, the HoD must apply his or her mind to the medical certificate (with or without describing the nature and extent of the illness or injury) medical information/records (if the employee consented to disclosure), the Health Risk Manager’s advice, the information as applied by the educator and all other relevant information available to the HoD and based thereon approve or refuse the temporary incapacity leave granted conditionally, on conditions that the HoD may determine, e.g. return to work etc..”

17 There is no dispute that the determination made by the HoD declining temporary incapacity leave was made 1 year and 10 months after the leave was sought. The respondent argued that due to Covid 19 lock down regulations and a backlog in the assessment of TIL applications, the respondent could not comply with the time periods. I agree that the 30 day period prescribed in PAM and in the Resolution is not practical nor is it realistic under the prevailing circumstances to comply with both the Resolution and the prescripts as contained within PAM..

18 In the matter of PSA and Another v PSCBC and Others (D751/09) [2013] ZALCD 3, Cele J at [20] in dealing with the failure of an employer to render a decision regarding the approval or disapproval of TIL within the 30 day period, commented as follows: “The limited facts of this matter suggest that on 24 June 2008 the third respondent had finalised all investigations and had made its decision which it communicated to Ms Gouvea by a letter it issued to her on that day. She had to report back at work on 1 July 2008. From the given facts, as I understand them, a report was issued by the Health Risk Manager declining the application for a periodical temporary incapacity leave for 4 December 2007 to 30 June 2008. This report sought to have a retrospective effect. The consequence of a retrospective effect is that it amounts to an unreasonable and arbitrary exercise of a discretion with unfair consequences to an employee. Nowhere in clause 7.5 of Resolution 7 of 2000, is there a suggestion that the employer may not grant further sick leave after the lapse of a 30 day period. On the contrary, as investigations shall be in accordance with item 10 (1) of Schedule 8 of the Act, a further sick leave period may be granted to the employee.”

19 In Department of Roads and Transport and JC Robertson v PSCBC and Others ( PR 40/14) [2017] ZALCPE that ‘the arbitrator’s interpretation of clause 7.5.1.(b)’ which was based on the Gouvea judgment could not be faulted. His reason was that when exercising a discretion whether or not to grant TIL, the Applicant ( in that case) was enjoined by PSCB Resolution 7 of 2000 to take into account the provisions of section 10(1) of Schedule 8 to the LRA. She that is Lallie J, had found that the interpretation that the arbitrator had given was consistent with the peremptory meaning of “shall” in clause 7.5.1.(b) of PSCB Resolution 7 of 2000.

20 The question I ask myself, what period as it relates to the retrospective effect of the decisions declining the applicant’s TIL applications, considering how long as it relates to periods the respondent could reasonably be expected to conduct an investigation and make a decision. The assessment or investigation is done by SONA, the Health Risk Manager. The last period under consideration is informative, namely the period 20 November 2020 to 26 January 2021. The application in question was submitted to the District Office by the applicant on 23 November 2020 and SONA received the application on 14 December 2020 and the decision to decline was taken on by the Head of Department on 2 June 2021. I therefore consider 6 months to be a reasonable period. I cannot ignore the lock down Covid periods that ultimately caused a delay in the process. I have noticed that the delay is not caused by SONA but by the respondent not processing and forwarding said applications to SONA. Having regard to prejudice suffered by the applicant considering the retrospective effect of the decision, the applicant was seriously prejudiced in relations to the period, 1 August 2019 to 31 December 2019. As it relates to the period 20 March 2020 to 30 June 2020, this period is covered by the National Lockdown in that during the period in question, educators were not required or permitted to return to work. As to the period 1 July 2020 to 26 January 2021 the decision not to grant or approve TIL is not unreasonable. Incapacity leave is not an unlimited amount of additional sick leave days at an employee’s disposal.

21. The Health Risk Manager must undertake an assessment. The purpose of the assessment is to, determine the validity of the application for TIL, determine the need for ongoing TIL; determine the appropriate duration of the leave, provide preliminary advice on the management of the conditions and advise a full health assessment, if applicable . The assessment by the Health Risk manager shall include, amongst others : Analysis and scrutiny of the available medical information, sick leave certificate(s) by medical practitioners and sick leave profile for the current and previous (if applicable) sick leave cycles, in conjunction with the employee’s annual leave profile for the corresponding period (if available). If the employee consented thereto, contact with the treating medical practitioner to verify information where necessary.

22. In conclusion, one cannot ignore that the applicant had been off sick from 10 June 2019 and only returned to work on 27 January 2021, we are talking about a period of approximately 1 year and 7 months. The applications (TIL) considering that the treating psychiatrist Dr Crafford report on 12 December 2019 as confirmed by the SOMA report specifically indicated that the applicant was engaging legal proceedings against the Department of Education and would not be fit for duty until his grievance had been appropriately resolved. What concerns me as indicated in the SOMA recommendation is that the applicant’s condition, by his own account and on assessment in 2020 by the Occupational Therapist, had improved due to his living in Port Elizabeth with his family and his extrication from his work environment. It was stated that the applicant required a transfer to Port Elizabeth and that he would not return to work until the arbitration process had been completed. According to SOMA with regard to the applicant’s absence, both the specific period and the employee’s absence in its entirety, SOMA was of the opinion that this falls within the remit of labour relations department and not within the scope of PILIR and temporary incapacity leave, is intended for absence where an individual is rendered significantly vocationally incapacitated as a result of serious medical or psychiatric pathology. In this context, whilst acknowledging the applicant’s diagnosis, there was insufficient evidence to suggest that he was precluded from all work-related duties over this period as a result thereof given the lack of evidence of intensive, multidisciplinary team intervention having been required. It must be noted according to SOMA that temporary incapacity leave is not intended for employees to continue to avoid unfavourable working environment, and in situations where this appears to have been the case. Based on this SOMA did not recommend the applicant TIL applications.

23. Considering the cause of the applicant’s incapacity, namely an internal labour dispute, the applicant’s TIL applications in my view was doomed to fail.

24. In terms of section 138(9) of the LRA “[a] commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award-
(a) that gives effect to any collective agreement,
(b) that gives effect to the provisions and primary objects of this Act,
(c) that includes, or is in the form of a declaratory order.”
(emphasis added)

25. I accordingly make the following award.


AWARD

26 The respondent, the Department of Education: Eastern Cape is in breach of Clause 9. 4 of ELRC Collective Agreement 7 of 2001 and clause H5.3.10 of PAM in that the respondent failed to approve or refuse the applicant’s temporary incapacity leave within prescribed 30 working days.

27 For reasons as previously explained I make the following declaratory order:
22.1 The period 1 August 2019 to 19 March 2020 is to be regarded as paid temporary incapacity leave.
22.2 The period 20 March 2020 to 30 June 2020 is to be regarded as absence due to the National Lockdown for which educators were paid and were entitled to be paid.
22.3 The period 1 July 2020 to 26 January 2021 is to be regarded as unpaid leave.






_______________________
Name: Jonathan Gruss
(ELRC) Arbitrator