ELRC505-21/22KZN

IN THE ELRC ARBITRATION
BETWEEN:
DICKSON DANSO ABOAGYE the Applicant
and
EDUCATION DEPARTMENT OF KWAZULU-NATAL Respondent

ARBITRATION AWARD

Case Number: ELRC505-21/22KZN

Date of award: 24/10/2022

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


DETAILS OF THE HEARING
1. The matter was enrolled before me for arbitration proceedings in terms of section 191(5) (a) (iv) of the Labour Relations Act 66 of 1995 as amended (The Act). The arbitration was held on various dates being the 29 November 2021, the 14 December 2021, the 25 March 2022, the 17 June 2022, the 28 July 2022 and the 12 August 2022. The arbitration was throughout conducted via online media.

2. The Applicant, Mr Aboagye, appeared in person and was represented by Ms. Uviwe Ganda an attorney from Nonjabulo Mulele Attorneys. The Respondent, on the other hand, was represented by Mr P K Appalraju from the Respondent’s, Ugu District.

3. The arbitration was held in English and it was mechanically recorded.

ISSUE TO BE DECIDED

4. In these proceedings, I am initially required to decide whether this Council has jurisdiction to arbitrate this matter. If so, I must determine whether, by not paying the Applicant’s salary for leave of absence, the Respondent committed an unfair labour practice within the ambit of section 186 (2) (a) of the Act and I must also determine the relief that the applicant would be entitled to should I find it in his favour.

BACKGROUND

5. The Applicant is Dickson Danso Aboagye who is currently employed by the Respondent as an Educator. He was employed on the 31 January 2007 and he is currently earning R26 035,00 per month. The Respondent is the Department of Education KwaZulu Natal, a governmental department duly fulfilling its mandate in terms of the Constitution and in terms of the South African Schools Act 84 of 1996, with its provincial offices at 247 Burger Street, Pietermaritzburg, KwaZulu Natal.

6. The Applicant referred a dispute for an unfair labour practice related to the provision of benefits in terms section 186 (2) (a) of the Act to this honorable council. The Applicant claims that the Respondent committed an unfair labour practice against him in that the Respondent had unfairly deducted the amount equivalent to R3223,89 from his salary in respect of the days that he was absent from work viz: 09, 10, 11 and 12 October 2018. The basis for the Applicant’s claim was that he submitted a leave form and the relevant documents to the Respondent but the Respondent continued to deduct his salary.

7. The Respondent on the other hand contends that the Applicant submitted his leave form without supporting documents and such leave form was submitted out of time. In terms of the Respondent’s leave policy, leave forms must be submitted within five days upon returning to work after a leave of absence. Despite the above, the Applicant had a pattern of submitting his leave forms late.

COMMON CAUSE FACTS

8. The following facts were common cause between the parties: That the Applicant was employed by the Respondent as an educator on the 31 January 2007; that at the time of the alleged unfair labour practice the Applicant was earning R26 035,00 per month; that the Applicant was absent from work on the 09, 10, 11 and 12 October 2018; that the Respondent deducted the Applicant’s salary in respect of the 09th, 10th, 11th and 12th October 2018 and that the Respondent has a policy which provides that employees must submit their leave forms with five working days upon returning to work after a leave of absence.


ISSUES IN DISPUTE

9. The following issues were in dispute between the parties: Whether the Applicant submitted his leave form without the supporting documents; whether the leave form was submitted out of time; whether the Applicant had a pattern of submitting his leave forms late and whether the Respondent acted unfairly by deducting the Applicant’s salary in respect of the 09, 10, 11 and 12 October 2018.

SURVEY OF EVIDENCE AND ARGUMENTS

Applicant’s case
10. The Applicant was the only witness who testified in support of his case and he testified as follows:

11. He stated that he reported his absence from work due to sickness to the deputy principal by telephone as the principal was not at work. Consequently, he was absent from work on the 09, 10, 11 and 12 October 2018. His absence was recorded in the Respondent’s register. Upon his return to work and within five days, he submitted his leave form together with the medical certificate, but the principal lost his initial leave form.

12. Despite having reported and submitted the required documents, his salary was deducted in April the following year. He was not informed about the deduction nor did the Respondent follow any procedure in effecting the deduction. The deduction severely affected his budget. He referred the Council to annexure “D” as proof of the deduction.

13. During cross examination, he admitted that his leave form in respect of the 09th, 10th, 11th and 12th October 2022 was dated the 20th November 2018 and that the form was 37 days late. However, he stated that it was the admin clerk who gave him the forms on this date. The admin clerk had a duty to give him the form early. Therefore, the delay was caused by the admin clerk. He could not dispute that this was not the first time he submitted the leave forms late, but he contended that his salary was never deducted in those instances. He disputed knowledge of the circular about the Respondent’s leave procedure appearing on page 23 of bundle “B”.


Respondent’s case


First witness


14. The Respondent called four witnesses in support of its case. The Respondent’s first witness was Delisile Nelly Sibiya who testified as follows:

15. She is employed by the Respondent as the human resources officer under the leave department. When she received the Applicant’s leave form appearing at page 16, the form did not have any supporting documents and according to his supervisor, there were supporting documents attached to the form when it was submitted. There was also nothing to suggest that the principal had lost the supporting documents or that the Applicant had to request a new medical certificate because the principal had lost the original.

16. It was the responsibility of the Applicant to ensure that he submits the supporting documents in support of his absence claim. In terms of the Respondent’s policy, a leave of absence for more than three days must be accompanied by a medical certificate. Furthermore, there was a circular that was issued by the Respondent reminding all employees about the policy on how they should handle any leave taken from time to time. In terms of this policy, if an employee had taken sick leave, he or she must submit the leave form with supporting documents within five days upon his or her return to work. This is contained in their contracts of employment as well as in the Employment of Educators Act no 76 of 1998 as amended (EEA).

17. Previously, the Respondent had not made any deductions from the Applicant’s salary for leave of absence where he had not provided the supporting documents. This is so because the Respondent had given the Applicant the benefit of the doubt. However, seeing that the Applicant had developed a patten of submitting his leave forms late and without supporting documents, the Respondent had to apply its leave policy in this regard.

18. She referred the council to page 2 of bundle “B”, which is the letter submitted by the Applicant’s trade union about the deduction from his salary. She stated that there was nothing in this letter which suggests that the principal had lost the Applicant’s medical certificate. When they had a meeting in this regard, the Applicant produced a medical certificate which looked very fresh and which could not have been obtained in 2018.

19. During cross examination, she stated that she was not aware of any infighting between the Applicant and the principal. She confirmed that the leave form on page 6 of bundle “B” was captured without the principal’s signature, but they telephoned the principal and confirmed the form with him. She stated that she was not aware whether the Applicant was warned that his salary would be deducted if he persists with submitting leave forms without supporting documentation.

Second witness

20. The Respondent’s second witness was Bawinile Lucacia Mqadi and she testified as follows:

21. She is employed by the Respondent as senior personal officer in the leave department. Her duties amongst other things are to capture leave and to administer leave forms. The leave form submitted by the Applicant did not have the supervisor’s signature. It also did not have supporting documents and leave was not recommended. She telephoned the principal and he confirmed the form. She then asked the principal to put it in writing, hence the letter appearing on page 15 of bundle “B”. The purpose of bundle “B” was to verify that the leave form did not have the medical certificate and that the leave was not recommended. She did not ask the principal why he did not sign the leave form as this was not part of her duties; she only dealt with the leave form.

22. During cross examination, she stated that she telephoned the principal about the leave form before the form was captured. This happened in April 2019. What had actually happened was that she received the leave form in 2019 and she noticed that it did not have the signature. The medical certificate was also not attached and leave was not recommended. As a result, she telephoned the principal before capturing the leave form. That was when she asked him to write a letter in this regard. She then proceeded to capture the leave form as unpaid. On the 13 February 2020, she received the letter from the principal. This was after the deduction had already been made.

Third witness

23. The Respondent’s third witness was Lindizwi Shabane who testified as follows:

24. If a teacher is absent from work, he or she would first report the absence to him, as the principal. He would then make a note about that teacher’s absence on the time book and under remarks; he would record the reasons for such absence. If the teacher did not report, he would record that the teacher had not reported. After that, he would refer the issue to the admin clerk who would then write down the leave form and bring it back to him for his signature. The teacher would then sign the leave form and leave it with him. However, teachers sometimes take it away, but he would normally insist that they must bring it back before the end of the day. Then he would sign it and send it to the leave department.

25. He stated that the employees are responsible to submit their leave forms. Failure to submit the leave form within the time frames in the leave policy would result to an employee not being paid as stated in page 23 of bundle “B”.

26. He further stated that the Applicant was absent from the 09th to the 12th October 2018 and he reported as normal. Upon his return, he did not come to collect his leave application form. This was something that he used to do and he had developed a pattern in this regard. He then telephoned the Applicant to come and sign his leave form and he eventually came. The leave forms were then filled in with the administration clerk. Normally, he would ask the admin clerk to complete the leave form and the educator would come in and sign it. He stated that he was aware of page 15 of bundle “B”, which is the letter he wrote about the Applicant’s leave without pay. He denied he was the one who lost the Applicant’s leave documents

27. Under cross examination, he was referred to the bottom of page 16 and it was put to him that an employee is not required to submit the medical certificate if he had been absent for two days. In response, he stated that according to the PAM document, a teacher who had a pattern of absence must submit the medical certificate even if he had been absent for one day. He denied that there was any inconsistency with regard to Gcaba.

Fourth witness

28. The Respondent’s fourth witness was Monica Nozipho Lubanyana who testified as follows:

29. She is employed by the Respondent as an administration clerk at Malusi High School. Her role in respect of leave includes checking the time book, leave register and completion of leave application forms. She would normally write the name of the educator in the time book and the educator would sign next to his or her name. The leave register in page 14 is used to record all absences.

30. She stated that she was the one who completed parts of the Applicant’s leave application form. Thereafter, she handed it over to the principal for the Applicant’s signature, but the Applicant did not bring it back to her. She then reported that to the principal who would normally deal with the Applicant. She also did not receive the medical certificate. When the Applicant submitted his leave form, he submitted it without the medical certificate. Under cross examination, she did not dispute that she receives the other leave forms.


CLOSING ARGUMENTS

31. Both, the Applicant’s and the Respondent’s representatives submitted written closing submissions. I would not repeat their submissions herein, but I have considered their submissions in my analysis below.

ANALYSIS OF EVIDENCE AND SUBMISSIONS

32. In these proceedings I am initially required to decide whether the issue in dispute is a benefit within the ambit of section 186 (2) (a) of the Act. If so, I would then be required to decide whether the Respondent has committed an unfair labour practice related to the provision of benefits as envisaged by section 186 (2) (a) of the Act against the Applicant, in particular, whether it was fair for the Respondent not to pay the Applicant for the period he was absent from work viz the 09, 10, 11 and 12 October 2018.

33. The general rule applicable to all civil litigation and arbitrations is that whoever alleges a fact must prove it on a balance of probabilities. In David Johan Randles v Chemical Specialities Case No D28610, the Labour Court held, with reference to Pillay v Khrishna 1946 A 946, that – “if one person claims something from another in a court of law, then he has to satisfy the court that he is entitled to it. In Lindsay v Ithala Development Finance Corporation Ltd (2) (2002) 23 ILJ 418 (CCMA), it was held that the overall onus always rests on the employee to show the existence of an unfair labour practice. Therefore, the Applicant bears onus to prove that the Respondent committed an unfair labour practice against him.

Whether the issue in dispute is a benefit as envisaged by section 186 (2) (a) of the Act

34. In terms of section 186 (2) (a) of the Act, an unfair labour practice means any unfair act or omission that arises between an employer and an employee involving- unfair conduct by an employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits.

35. In the present case, the Respondent, in its preliminary point, contended that the issue in dispute is a salary and not a benefit as envisaged by section 186 (2) (a) of the Act. The issue of a salary is part and parcel of the contract of employment which falls withing the exclusive jurisdiction of the Labour Court. The Applicant on the other hand insisted that the issue was indeed a benefit and this Honorable council has jurisdiction arbitrate the matter.

36. In Apolllo Tyres South Africa (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (2013) 34 ILJ 1120 (LAC), at paragraph 25, it was held that the distinction that the courts sought to draw between salaries or wages as remuneration and benefits is not laudable but artificial and unsustainable. The definition of remuneration in the Act is wide enough to include wages, salaries and most, if not all, extras or benefits. At paragraph 50, the court held that 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 the policy or practice subject to the employer’s discretion. The benefit in section 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.

37. In the present case, it was common cause that the issue in dispute concerns a salary which was not paid to the Applicant as a result of his absence from work. In Apollo supra, the court was crystal clear to the effect that a salary is a benefit for the purposes of section 186 (2) (a) and thus fall within the ambit of an unfair labour practice. In terms of section 191 (5) (a) (iv) of the Act, the council or commission must arbitrate the dispute at the request of the employee if the dispute concerns an unfair labour practice. Therefore, it my view that this Council has jurisdiction to arbitrate this matter.

Whether it was unfair for the Respondent not to pay the Applicant for the period he was absent from work

38. It was common cause that the Applicant was absent from work on the 09, 10, 11 and 12 October 2018, that he reported his absence and that he was not paid for the period he was absent from work. The only issues in dispute were whether the Applicant submitted his leave application form and supporting documents in time and whether the non payment of his salary was nonetheless unfair.

39. There was a dispute of fact on whether the Applicant submitted his leave form in time. The Applicant version was that upon his return to work and within five days, he submitted his leave form together with the medical certificate, but the principal lost his initial leave form. On the other hand, the principal disputed that the Applicant had initially submitted his leave form in time and that he was the one who lost the Applicant’s initial leave form. He stated that when the Applicant retuned to work, he did not come to collect his leave application form. He only came after he had telephoned him to come and collect the leave forms.

40. The Courts have developed guidelines on how to deal with the dispute of facts in a particular case. In SFW Group Ltd and Another vs Martel et Cie and Others 2003 (1) SA 11 (SCA), it was held that in order to come to a conclusion on the disputed facts the court must make findings on the credibility of various factual witnesses, their reliability and probabilities. In Sasol Mining (Pty) Ltd vs Commissioner Ngeleni & Others (2011) 4 BLLR 404 (LC), it was held that the proper approach when resolving factual dispute is to make findings on the credibility and reliability of witnesses, which in turn entails finding on the witnesses’ candor, demeanor, contradictions in their evidence and an assessment of the probabilities.

41. In the present case, even though the Applicant gave credible testimony in regards to the submission of the leave form, his evidence was not corroborated by any other evidence. Despite that, the Applicant’s evidence to the effect that the principal lost his initial leave form was highly improbable. I say so because in the letter dated 14 October 2019, which was addressed to the Head of leave section, the Applicant never said anything about the principal having lost his leave forms and documents. Similarly, in the letter appearing in page 2, which was written by the Applicant’s trade union and which was addressed to the circuit manager, the Applicant never said anything about the principal having lost his leave form. But instead, the Applicant stated that the nonpayment of his salary was a result of infightings between him and the principal. If the issue of the principal losing his leave form and documents was true, the Applicant would have stated this in the two letters that he wrote to the department.

42. On the other hand, the Respondent’s witnesses gave credible and reliable evidence regarding the submission of the leave form and they corroborated each other in this regard, in particular, the evidence of the third witness and that of the fourth witness. They stood their ground even during cross examination. In fact, the third witness was very eloquent to the effect that the Applicant did not come to collect his leave form after his leave of absence. He only collected the form after he was telephoned. There is no reason to disbelieve the evidence of the fourth witness who clearly stated how the issue of the Applicant’s leave form was dealt with.

43. In my view, the Respondent’s version as far as the submission of the leave form is concerned is more probable that the Applicant’s version. I therefore prefer the Respondent’s version over the Applicant’s version in this regard and I accordingly find that the Applicant did not submit his leave form in time and the form that was subsequently submitted did not have the medical certificate. However, this is not the end of the enquiry. I must still decide whether the non payment of the Applicant’s salary was nonetheless unfair to the Applicant.

44. The Respondent’s version, through its first witness, Sibiya, was that according to the policy in circular 15 of 2011, failure to submit the leave forms within the stipulated time frames would mean that the absence is without permission and will have to be covered by the granting of leave without pay. However, the same witness, in her own version stated that previously the Respondent had not made any deductions from the Applicant’s salary in respect of leave of absence where the Applicant had not provided supporting documents. Seeing that the Applicant had developed a pattern of submitting his leave forms late and without supporting documents, the Respondent decided to apply its policy.

45. In Apollo supra, at paragraph 53, it was held that unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended. According to A.C Basson, Essential Labour Law, 7ed, at page 333, the onus to prove unfairness rests on the employee and the employee will have to prove, as a general rule, that the employer’s conduct was arbitrary, irrational, capricious or in bad faith.

46. In the present case, in my view, even though the Applicant did not submit his leave form in time and when he submitted it, he submitted it without a medical certificate, the Respondent was unfair to deduct or not to pay his salary in this regard. I say so because the Respondent did not dispute the medical certificate that was subsequently submitted by the Applicant, except that the first witness Sibiya stated that the certificate looked fresh and could not have been obtained in 2018. Moreover, the Respondent’s evidence was clear that it had condoned the non-submission of the supporting documents. This is so because the Respondent continued to pay the Applicant even if he had not submitted the supporting documents. This clearly shows that the Respondent was not consistent in the manner it applied its leave policy.

47. It is trite that in terms of historical inconsistency, that where an employer has condoned noncompliance with the rules or policies in the past, it would be unfair to suddenly apply the rules strictly without first informing the employees that a much stricter approach would be applied in future. Therefore, in the present case, a sense of fairness dictate that the Respondent should have first warned the Applicant that he will not be paid in future if he continues to submit his forms late and without supporting documents. There was no evidence to suggest that the Applicant was warned that a stricter approach to leave form submissions would be applied in future. In fact, the Respondent’s first witness stated that she was not aware whether the Applicant was warned in this regard. Therefore, in my view, the Respondent’s conduct of not paying the Applicant for his leave of absence in respect of the 09, 10, 11 and 12 October 2018 was unfair.

REMEDY

48. In terms section 193 (4) of the Act, an arbitrator appointed in terms of the Act may determine an unfair labour practice dispute on terms that the arbitrator deemed reasonable, which may include ordering reinstatement, re-employment or compensation.

49. In light of the fact that I have already found that the Applicant submitted his leave forms and medical certificate late, compensation in the form of a solatium would not be appropriate in the circumstances. I say so because the Applicant did not come to this Honorable Council with clean hands. The only appropriate remedy would be to order the Respondent to pay the Applicant’s salary for the 09, 10, 11 and 12 October 2018. It was common cause that the amount that was not paid to the Applicant in respect of these four days was R3223, 89.

AWARD

50. The Respondent’s conduct of not paying the Applicant’s salary in respect of the 09, 10, 11 and 12 October 2018 was unfair and thus an unfair labour practice related to the provision of benefits as envisaged by section 186 (2) (a) of the Act.

51. The Respondent, the Department of Basic Education KwaZulu-Natal, is ordered to pay the Applicant the sum of R3223, 89 being the salary that the Applicant would have received had it not been for the unfair labour practice.

52. The amount cited in paragraph 51 above must be paid to the Applicant on or before the 30 November 2022.

53. There is no order as to costs

Scelo V Mkhize - Panelist