ELRC1079-21/22EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HEARD VIRTUALLY VIA ZOOM

Case No ELRC1079-21/22EC

In the matter between

NAPTOSA obo MENEZES, LESHAE Applicant

and

THE DEPARTMENT OF HIGHER EDUCATION
& TRAINING: EASTERN CAPE First Respondent

Arbitrator: Pumeza Ndabambi

Date of award: 18 November 2022

SUMMARY: Labour Relations Act 66 of 1995 – Unfair Labour Practice in terms of section 186(2)(a) - unfair conduct relating to the provision of benefits - non-approval of temporary incapacity leave


ARBITRATION AWARD


DETAILS OF HEARING AND REPRESENTATION

1. This matter came before the Education Labour Relations Council (ELRC)for arbitration, in terms of section 191(5)(a)(iv) of the Labour Relations Act 66, 1995, (the LRA). The Applicant, Ms Leshae Menezes, was represented by Adv G. D. Saayman, an official of NAPTOSA and the Respondent, Department of Higher Education and Training: Eastern Cape, was represented by Adv M. Mali.

2. The proceedings were held virtually through Zoom on 25 August 2022, 29 September 2022 and 28 October 2022 and were recorded electronically.

3. The parties signed a pre-arb minute which was filed with the Council.

4. Both parties agreed to submit written closing arguments by no later than 4 November 2022 and indeed both parties complied.

ISSUE TO BE DECIDED

5. I am required to determine whether the conduct of the Respondent in declining the Applicant’s temporary incapacity leave amounts to an unfair labour practice, and if so, determine an appropriate remedy.

BACKGROUND TO THE DISPUTE

6. The Applicant holds the position of a Lecturer (Post Level 2). She was stationed at Charles Goodyear Campus and later moved to High Street Campus. She applied for temporary incapacity leave for the periods, 12 May to 18 August 2021 and 22 October - 9 December 2021. The leave was not approved, which forms the subject of the present arbitration. The Applicant seeks, as a remedy, that the temporary incapacity leave be granted and no deductions to be made from her salary.

EVIDENCE AND ARGUMENT
Applicant’s Version

7. Ms Leshae Menezes (the Applicant) led her own testimony and a bundle of documents, the summary of which is outlined below:

8. The Applicant testified that she was sexually harassed at work at the Charles Goodyear Campus by a male lecturer. She, thereafter, suffered stress, anxiety and depression, and decided to consult a psychologist and psychiatrist. She then went to Mr Twala, the Campus Manager and was told not to mention the issue to her husband which she did. She also consulted her union about the matter.

9. She then received a letter of abscontion from the Respondent. She assumed they knew of her illness as she reported the sexual harassment to the Campus Manager. She was therefore surprised to hear the allegation of absconding. She further reported the matter to Mr Charl van Heerden, the Principal and made attempts to meet him. No disciplinary action was taken against the alleged perpetrator.

10. She asked for a transfer as she could no longer work in the same space with the alleged perpetrator. She was then diagnosed with stress, anxiety and depression. The Applicant is not sure if she had any capped leave. She applied timeously for temporary incapacity leave. The application date is 12 May 2022, after he went to the psychologist and completed the forms with her medical certificate and was booked off for 12 May 2021 to 25 May 2021 and such illness was triggered by the sexual harassment. The Applicant applied for 11 June 2021 to 19 August 2021. The 30 days temporary incapacity leave was not granted.

11. From the documents presented she applied in time and provided details of the attending doctor as well as the diagnosis of Major depression, ‘referred’ and no chronic physical illnesses, and severe work stress. She is stressed to be in the same space with the person concerned.

12. She liaised with Fezeka who works at HR who signed her document on 8 July 2021, whilst it was sent in June 2021. There is no date on which the Campus Manager, Mr Twala signed and attached to the application is Dr Taylor’s medical certificate dated 17 June 2021 recommending sick leave from 17 June 2021 to 17 August 2021.

13. The assessment by SOMA Initiative is not a fair assessment as both applications were dealt with as one application. She submitted a short-term and long-term application and it was treated as one long-term incapacity. She submitted the applications as follows:
a. 12 May 2021; and
b. 12 June 2021.

14. The Health Risk Manager signed on 18 October 2021 and sent an email to the Applicant that her leave from 12 May to 18 August 2021 was declined. Such an email was received on 23 November 2021.

15. For the leave of 25 Oct to 9 December 2021, documents were submitted on 21 October 2021. SOMA Initiative received documents from the Respondent on 9 December 2021, a period of about 60 days after the application was submitted by the Applicant. The communication of the outcome was signed by Ms Gropp on 21 January 2022 and was received by the Applicant on 14 February 2022.

16. The Applicant believed that her temporary incapacity leave was granted because 30 days lapsed, she was therefore surprised to hear nearly a year later that it was declined. She had sick leave credits, filled in forms correctly for long term incapacity.

17. Clause 5.3.8 of the PILLR policy states that the HoD must within 5 working days conditionally grant a minimum of 30 consecutive days. The Applicant was not granted conditional 30 days. In clause H5.3.10 it is stated that the HoD must within 30 days grant or refuse the leave. She received no response within 30 days.

18. The Applicant added that she is on a different campus and feels better.

Respondent’s Version

19. The Respondent’s version was led through the evidence of two witnesses, Ms Thembisile Zondo (Ms Zondo), an employee working with PILLR & Pensions, Mthetheleli Twala (Mr Twala), the Campus Manager and a bundle of documents.

20. Ms Zondo testified that she works in the PILLR and Pensions department which has 4 permanent employees. She works directly with PILLR matters and is the only employee dealing with 52 colleges nationally, 49 CET’s and head office. In the beginning of the leave cycle they received about 10 applications but by the end of the cycle they were receiving 100 applications per week. They therefore first check compliance to time frames and deal with applications in order of compliance.

21. She confirmed receiving the Applicant’s application. The process starts with her screening the applications for compliance and process on PERSAL, if compliant the supervisor approves and signs, then it goes to the Health Risk Manager who would consider the application and give feedback to the official.

22. In an application for incapacity leave a medical certificate from the attending doctor is required as well as the application form and other relevant medical information. The applications take 4 to 6 weeks and Ms Zondo is the only employee dealing with the applications by receiving, processing on PERSAL, send to Health Risk Manager and give feedback to officials, which on a weekly basis she sends about 60 letters which the Supervisor must check and sign off.

23. Ms Zondo further explained that the Health Risk Managers consist of a board of doctors. She stated that the time frames for finalising applications are 4 weeks for short term, 6 weeks for long term incapacity and about 3 months for retirement/ill health. Once an application is declined an employee is given an opportunity to apply for reassessment. One can be taken for a second opinion. The application for reassessment is done in the labour relations grievance form and one must provide the department with new medical information that was missing - if medical information was identified. So the doors are not closed as long as new information is submitted.
24. If the leave is declined it is converted to annual leave or unpaid leave once information from the official is not received after 5 days. No deductions were made from the Applicant.
25. Ms Zondo went through the Applicant’s applications as follows: -
a. 12 April 2021 - 16 April 2021
Applicant signed in June
Outcome 28 July 2021
b. 27 April 2021 - 11 May 2021
Applicant signed 26 June 2021
Head office received 22 September 2021
Submission to Health Risk Manager (HRM) 9 October 2021
Outcome to ECM 28 July 2022
c. 12 May 2021 - 18 August 2021
Signed by Applicant 27 May 2021
HO received 22 September 2021
Submission to HRM - 11 October 2021
Outcome - 18 November 2021
d. 19 August - 21 October 2021
Applicant signed 19 August 2021
HO received 22 September 2021
Submission to HRM: 9 October 2021
Outcome to ECM 20 July 2022
e. 22 October 2021 to 9 December 2021
Applicant signed 25 October 2021
HO received 5 November 2021
Submission to HRM: 8 December 2021
Outcome: 24 January 2022

26. Ms Zondo stated that it is not possible for the department to stick to the 30 day deadline as they only have one employee processing the applications for 52 colleges. The application by the Applicant was submitted late to the department as it was received on 22 September for leave taken in April. Even on the applications for 12 May to 18 August and 22 October to 9 December they were received late for processing. The PILLR policy gives doctors to decide on the leave as they assess and give feedback to the department, the department then communicates the outcome with the employee concerned.

27. Under cross-examination she stated that the Applicant was granted a conditional 30 days with pay as a PILLR requirement. She confirmed that the outcome must be communicated within 30 days and in the case of the leave applications in question there was no compliance in giving feedback within 30 days. She further stated that there is no prejudice to the Application because she received her salary during the period of assessment. She further stated that the HRM indicates what is missing and if an employee complies they do the application again.

28. Mr Twala testified that the events leading to the present case started in December 2020 when another employee, Ms Qwane disclosed that her sister, with whom she stays contracted covid-19. There was discomfort amongst staff and he told her to go for a test and stay at home and further work from home. The Applicant said she wanted to work from home because of Ms Qwane’s issue. She was told to do her marking at the venue. She stayed at home and did not accept Mr Twala’s decision.

29. The Applicant later said she tested positive for covid-19. Mr Twala asked for the results and she failed to produce. The Applicant then reported the issue to NAPTOSA, her union. A meeting was held with the union where it was explained and they understood that scripts were a priority. Mr Twala then took scripts to the Applicant’s home through Mr Somana and another employee.

30. On return Mr Somana made a joke that the Applicant’s husband will shoot Mr Vikilahle. Mr Twala followed up on this issue with Mr Somana and called the Applicant’s husband. Mr Somana apologised and the Applicant’s husband accepted the apology and the Applicant said she was fine.

31. Towards the end of January or beginning of February the Applicant approached Mr Twala angry that Mr Somana spread rumours that she is sleeping with black lecturers. Mr Twala asked who told her that and she refused to disclose the person and he therefore could not investigate. That was the last he spoke to the Applicant as she did not report for work. He then had to institute an abscondment letter due to absence of 14 days.

32. The Applicant responded with a medical certificate. Mr Twala asked the Applicant to fill in forms, attach medical certificates and send to him so he can sign and forward to HR. It was difficult for the Applicant to comply. Mr Twala called a meeting with Adv Mali and a NAPTOSA representative. They came to 3 decisions:
a. That the Applicant must submit forms;
b. She must complete a transfer form to another campus; and
c. She must send her incapacity leave application.

33. Mr Twala received the transfer form very late as the Applicant refused to come to his office. She sent another person and the documents were signed in her absence as she refused to go to the premises of the Respondent. He dealt with two complaints by the Applicant, namely,
a. the shooting issue, where the apology was accepted; and
b. The other about the Applicant sleeping around with black lecturers.
According to Mr Twala there was no sexual harassment complaint, he therefore does
not understand how the Applicant was treated unfairly.

34. Mr Twala stated that he is not a Doctor to be able to confirm that the rumours led to an occupational disease. It cannot be a reason for her to be sick. On the transfer she told the Applicant there must be a paper trail of the transfer, she must therefore fill in transfer forms, he would approve. The Applicant took two months to submit the forms and Mr Twala later learned that the issue went to the Principal when he was copied in an email. No other communication made by the Applicant.

35. In the Applicant’s absence Mr Twala asked other 2 lecturers to carry the Applicant’s work and offered extra pay for the additional duties. There is no medical certificate that the Applicant was hospitalised. He reiterated that he received no complaint of sexual harassment. He therefore denies that the college is responsible for the Applicant’s circumstances. The Applicant could only respond with a medical certificate on the abscondment issue. She also forgave Mr Somana. It cannot be said that the college failed to follow up on her cases. The Applicant avoided him and sent her incapacity leave application directly to HR without copying him and made him receive the application late.

ANALYSIS OF SUBMISSIONS

36. Section 185 of the LRA states that every employee has a right not to be unfairly dismissed or subjected to unfair labour practices, giving effect to section 23 of the Constitution of the Republic of South Africa. This dispute is referred as an unfair labour practice dispute in which the onus rests on the employee to prove that the conduct complained of is of the employer’s making.

37. In this matter the dispute is around application of the PILLR policy in respect of time frames applicable to temporary incapacity leave applications. It is common cause that the Applicant applied for two periods that were declined, namely,12 May to 18 August 2021 and 19 August 2021 to 22 October 2022 to 9 December 2022, the feedback of which was received by the Applicant in February 2022.

38. The reasons provided in the feedback for declining the Applicant’s leave for 12 May to 18 August 2021 are listed as follows: -
a. There is no indication of planned frequent consultations with your psychiatrist and/or psychologist during this ongoing more than 3 month absence from work;
b. No evidence that you required inpatient care during this absence;
c. No indication of treatment changes during this absence; and
d. No evidence of multidisciplinary team intervention or any other form of psychiatric rehabilitation planned during this period in question. There was an indication of psychotherapy that you were attending, however, we are uninformed regarding the frequency of these sessions and your ongoing response to these sessions.

39. For the period 22 October 2021 to 9 December 2021, the reasons by SOMA Initiative for declining the Applicant’s leave application are stated as follows: -
- There was insufficient documentation to support that she qualifies for temporary incapacity leave;
- There was no indication of actual/planned adjustments to her psychotropic medication since June 2021 (contradictory information was given regarding the Urbanol dosage);
- Whether she required a period of admission;
- No evidence of actual/planned multidisciplinary team intervention and so forth.

40. This is feedback made by a panel of doctors at Soma Initiative which I cannot dispute as it is expert evidence that is not placed in dispute. In this matter the Respondent submitted the Applicant’s application to the relevant body that operates independently. The recommendations of that board are clearly indicating that there is not sufficient information to support the Applicant’s application.

41. It is my view that the Applicant should have provided the required information through an appeal process or grievance hearing for the decision to be reconsidered as both outcomes indicate how she must deal with the decision to decline her leave. It is accepted that the decision was communicate outside of the PILLR time frames and I must consider whether the Applicant was prejudiced in any manner by that late communication of the outcome.

42. It is common cause that applications for temporary incapacity leave are subject to investigation by the board of doctors that form the HRM. They also have powers to recommend approval or decline of leave applications. In the findings of the HRM it is clearly stated on both leave applications that there was insufficient information, and that information was specified. The Applicant had a right to lodge a grievance or appeal the decision and in so doing provide the information that was required to ensure success of her application. In this regard it is therefore a matter of compliance, which is the primary determinant in applications of this nature.

43. The Applicant could source the information from her attending doctors who are best placed to answer on the information required by SOMA. It is not enough to only attack time frames, which talk to procedure when the very substance of the application is lacking.

44. I am not going to deal with the background provided by Mr Twala as in my view it involves issues that can best be dealt with through the disciplinary code for the employer and the grievance procedure for the Applicant. I am of the view that entertaining such issues would derail the case at hand although they provide a good navigation into issues leading to the present dispute. Secondly the dispute referred is not that of sexual harassment to be able to define what sexual harassment is. Such issues are regulated in a different statute.

45. Clause 7.3.3.2 of the PILLR policy states that the employer must within five working days from receipt of the employee’s application for temporary incapacity leave conditionally grant a maximum of 30 consecutive days temporary incapacity leave with full pay subject to the outcome of his/her investigation to the nature and extent of the employee’s incapacity. Such leave had been granted and based on Ms Zondo’s evidence there was no deductions made from the Applicant’s salary.

46. Even if the Respondent had complied with the time frames the outcome would not be different given the required medical information that would inform success of the Applicant’s application for temporary incapacity leave. There is therefore no prejudice on the part of the Applicant given the extent and substance of the outstanding information, which her grievance should have addressed and not only attack the decision with no supporting documents from the attending doctors. There is also further recommendations of referral to the Employee Assistance Programme which nothing is said of. There are also further successful applications for the Applicant the decisions of which were communicated outside of the time frames.

47. The Applicant therefore failed to submit the further information required in support of her grievance within the required time frame to allow the Respondent, through SOMA Initiative, to reconsider her application.

48. I must therefore find that the Applicant has failed to discharge the onus as required in showing that the Respondent committed an unfair labour practice in declining her application for temporary incapacity leave.

49. In the circumstances, I make the following award:

AWARD

50. The conduct of the Respondent, Department of Higher Education and Training: Eastern Cape, in declining the Applicant’s application for temporary incapacity leave does not constitute an unfair labour practice.

51. The Applicant, Ms Leshae Menezes, is not entitled to any relief.

PUMEZA NDABAMBI
PANELLIST: EDUCATION LABOUR RELATIONS COUNCIL