ELRC864-22/23WC

Commissioner: Lanthis Taylor
Case No.: ELRC864-22/23WC
Date of Award: 12 June 2023

In the Arbitration between:

SAOU obo Ms. M Hay
(Union/Applicant)

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)

Union / Applicant’s representative: Mr. Rudolph Baard (SAOU) & Ms Hay
Telephone:
Telefax:
Email:

First Respondent’s representative: Ms. Ghatoon Khan
Telephone:
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Email:

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:
1. An arbitration hearing was convened under the auspices of the Education Labour Relations Council over the period 28 March 2023 and concluding on 25 May 2023 by way of the virtual platform, Zoom. The applicant, Ms. Maritha Hay, was represented by Mr. Rudolph Baard of SAOU while Ms. Ghatoon Khan represented the respondent, the Department of Education – Western Cape. The proceedings were digitally recorded. Closing arguments from both parties were received in writing on 5 June 2023.

THE ISSUE IN DISPUTE:
2. I must determine whether the respondent committed an Unfair Labour Practice in respect of rejecting an application for leave for Urgent Private Matters, substituting this leave taken with unpaid leave and deducting the Rand value of such leave from the applicant’s pay without her consent.

BACKGROUND TO THE ISSUE:
3. Mr. Baard stated that Ms. Hay had applied for two days’ leave (urgent private matters) in order to attend a family reunion as her brother was emigrating. She had given more than sufficient notice for leave of absence and for a substitute to be arranged. The principal did not approve the leave and the WCED did not grant the leave. Ms. Hay only found out in January 2023 that the leave had not been granted by the Department and that money had been deducted from her salary without her consent. The applicant claims that she was prejudiced by the decision to not grant the leave for urgent private matters and also by the deduction of her remuneration. She seeks that the decision to implement leave without pay be overturned and that the WCED should pay back the R1900.00 that it deducted from her salary.

SUMMARY OF THE EVIDENCE & ARGUMENTS:
5. Both parties presented bundles of documents in support of their versions. The applicant testified on own accord. The WCED called the principal, Mr. Louw and Ms. Carmen Robinson from Employee Benefits to testify on its behalf.

6. I am required by the LRA to provide brief reasons to substantiate my findings and determinations in this dispute. As such despite considering all the submissions presented, I will only deal with what I believe is relevant and what will relate to the core issues in dispute.

THE APPLICANT’S CASE:
7. The applicant bore the burden of proof and as such commenced with presenting her version under oath. The applicant, Maritha Hay testified under oath that she is a teacher at Bell Park Primary School. She confirmed that she completed an application for leave form for the period 10 and 11 November 2022. She submitted this form on 27 September 2022 and the section that need to be completed by the principal was dated 8 November 2022 where the application was marked “Not Recommended” with an attached letter motivating the decision.

8. Hay stated that she had sought advice from Morne Jansen from the union SAOU and was advised that the leave applied for fell within the category of leave for urgent private matters. She indicated that history at the school regarding leave applications dictated that if one took leave other than sick leave, one would have to pay a substitute per day. She did not agree with this sentiment and this was the reason she sought advice from her union. The principal did not agree with the view expressed by Jansen that it was leave for urgent private matters and indicated that he would also investigate this too. He informed her that he had spoken to Loreen from the same union who gave him a different version to that of Morne Jansen. The principal relayed to her that he could not approve leave for urgent private matters but could grant unpaid leave. He stated that a classroom cannot function without a teacher and that no substitute teachers were available.

9. Hay stated that on 20 October 2022, she met with the principal, the deputy principal and the secretary regarding the same issue. She was advised that they do not see her request for leave falling within the ambit of urgent private matters and that she was needed in class. She asked about the payment for the substitute and was told that it was a “gentleman’s agreement” for this to be effected. She stated that she asked whether she could take unpaid leave and the principal agreed that she could take unpaid leave. She stated that because there appeared to be conflicting versions from two SAOU officials, she advised the principal that she would go back to SAOU in this regard.

10. Hay testified that she then submitted an email to Bernadette Tataw explaining her situation. Ms. Tataw directed the query to Deon Julies who duly responded to her on 1 November 2022 by return email. He stated that the only leave that she could apply for is Family Responsibility Leave for Urgent Private Matters which can only be recommended or not recommended by the principal of the school. Hay believed that this was good news that she could take leave for urgent private matters. She went back to the principal with this and forwarded the email to him. On this basis, she pursued her application for urgent private matters leave. She received no further communication from the principal.

11. Hay stated that she had not received any correspondence from the WCED regarding payment of debt or where the leave had been declined and would be without pay. She referred to the PAM document indicating that it does not define urgent private matters. Her view is that urgent private matters are different for each person. She explained her scenario to the principal. She also stated that she was not aware of the PAM document being updated and that the leave forms had been amended. She indicated that she had left work for her learners and when she came back, she checked that the work had been done correctly. She appreciates communication and the lack thereof was disheartening. She did not know that her application for leave for urgent private matters had not been approved until January 2023. If she was not allowed to take leave, then she would not have taken leave. She presumed that the leave she applied for had been granted. The reasons proffered by the principal were unjustified as she had not seen her family for 4 years. This was self-explanatory and with her being an emotional person, it is tough not seeing your family for such a long time.

12. During cross examination, Hay confirmed that she required leave to meet with her family members in Gqeberha (PE) on school days and that the principal had told her that he was not going to recommend the application for leave for urgent private matters. She confirmed that Morne Jansen had told her that it was leave for urgent private matters. She confirmed that Loreen was a colleague of Jansen and that the principal had told her that Loreen does not agree with his definition of urgent private matters. She herself did not hear from Loreen but had queried the two version from the same union by submitting her email to Tataw.

13. She stated that she did not apply for unpaid leave despite being told by the principal that she could because she had information from Morne Jansen which differed from that of the principal. She confirmed that it is the principal’s prerogative to recommend leave or not. She further confirmed that he had told her that her leave did not constitute urgent private matters and that he had not recommended the leave. She did not go back to check if the leave was approved as she thought that it was the principal’s duty to inform her. She confirmed that she assumed that the leave had been recommended.

14. Hay stated that meeting her family was urgent as it was important to her. She defined “urgent” as something that you need to do and which you cannot leave that needs immediate action or attention. She confirmed that she submitted her application for leave for 10 and 11 November 2022 on 27 September 2022. She submitted her application on her investigation and the union’s opinion. Hay confirmed that she knew the principal’s view; that there were two versions from the union; a third view from service benefits was given to her and that any recommendation is the prerogative of the principal who has the right to recommend or not. She further stated that she understood that Head Office implemented the principal’s recommendation. The applicant closed her case and the matter was stood down to reconvene on 25 May 2023.


RESPONDENT’S CASE:
15. The respondent called its first witness, Mr. Pieter Wouter Louw (Louw), the principal of Bellpark Primary School. Mr. Louw testified under oath that he had received an application for leave for urgent private matters from Ms. Hay. They had discussed the application and he had explained to her that her motivation for seeking the leave did not fall within the ambit of the urgent private matters. He explained the difference insofar as urgent private matters related to the examples of a geyser bursting or a car breakdown whereas visiting family would be unpaid leave. When he informed Hay of this, she indicated that she would be contacting her union. She then came back and told him that the union had advised her that it was leave for urgent private matters and that he should sign off the leave application as such. He stood by his view that it was unpaid leave.

16. Louw confirmed that he had not recommended leave for urgent private matters as in his view wanting to see her family did not constitute an urgent private matter and the PAM document does not make specific mention regarding family visits. He further testified that the school has a leave policy to provide information to teachers as the PAM document is silent on what constitutes urgent private matters. He further stated that he had indicated in his letter that he could not recommend that type of leave applied for as there were no substitute teachers available. The school cannot function without a teacher and there was no budget for that type of leave. He indicated that his secretary is responsible for the leave forms after his recommendation is attached and she sends the form to the Department. The school does not get any feedback in respect of leave forms submitted and the first time that he became aware of the applicant having had a deduction from her salary was when she and another teacher approached him.

17. Louw stated that the applicant had not come back to him after submitting the leave form and their discussion. She just left and did not report to the office that she was going on leave. He only found out the next day that she was not at the school. He stated that the staff are informed of the leave policy at the first meeting of the year where staff receive a bundle of documents. Staff had previously paid for substitutes but this had been removed from the policy. The circuit manager had also reprimanded principals and instructed them to not sign any leave forms without investigating the reasons for the leave applied for.

18. During cross examination, Louw indicated that he had discussed the situation with Hay and thereafter had not recommended the type of leave that she had applied for. Louw stated that he had not discussed the leave form with the applicant again at the final instance as he had previously discussed it with her and stood by his view that the leave did not fall within the ambit of urgent private matters. He denied that the applicant had showed him an email from Julies where Julies considered the application to be one of urgent private matters. He indicated that he had not contacted the Department after the applicant had not accepted his view but had spoken to his Circuit Manager. When questioned about the amended leave form, Louw replied that the school received the amended leave forms much later than the promulgated amendments.

19. When questioned about the interpretation of H11 of the PAM document and where examples of leave for urgent private matters are listed, Louw confirmed that they are not listed but stated that H16 of the PAM document (which the applicant did not include in its bundle) indicates that leave is without pay unless the Employer determines otherwise. Louw confirmed that he is accountable for leave at the school but delegated that his secretary submit the documents to the Department. The secretary spoke to one Mr. Meintjies about the documents that were not received by Hay and that the school had also not received the correspondence. Louw stated that Julies had expressed his own view on urgent private matters and family responsibility leave. In response to the fact that Hay had applied two months in advance for leave, Louw stated that at the end of the year it was difficult to get a substitute teacher. Mrs Smit was a last minute substitute for Hay. Louw re-affirmed that the applicant could go on unpaid leave and that he would have recommended the same. The substitute was paid by the school.

20. The respondent called its second witness, Carmen Robinson who testified under oath that she is a Deputy Director, Service Benefits, District East. Robinson explained the process regarding a leave application that is not recommended by the principal who is the line manager. She explained how the process unfolds when a leave form is received. If the leave is not recommended, a motivation for this needs to be attached. All checks and balances are done and once these are verified, the educator is advised that leave without pay will be implemented and Service Benefits will then advise the Finance Office of over payment in salary which needs to be adjusted. Finance will advise the employee of the amount of the overpayment.

21. Robinson indicated that the role of the principal is to assess the environment of his or her school and may recommend or not recommend leave on this basis. If the leave is not recommended, the principal has to submit a motivation as to why he or she is not recommending the granting of leave. If the leave is not recommended, it would be leave without pay.

22. During cross examination, she confirmed that when leave is not recommended, a motivation for this needs to be supplied to the Department. She confirmed that the Department will overturn a principal’s decision if no motivation is supplied but would firstly approach the principal for clarity. She confirmed that the principal is the manager of his or her school and the Department cannot question his or her reasons supplied in the motivation letter. The principal is tasked to act in the best interest of the school as a manager. She confirmed that the principals are trained via workshops and circulars in respect of the leave that educators may apply for. Employees are also informed by way of circulars and training.

23. Robinson accepted that the PAM document is silent on what constitutes urgent private matters but indicated that her understanding of urgent private matters is where something requires immediate attention and is not a planned event. She agreed that there were disparaging views but stated that it was the line manager who recommends or does not recommend the leave type. She also confirmed that in the correspondence of Julies, he indicated that it was the prerogative of the principal to recommend or not. When it was put to her that the applicant had not received the letter from Rita van der Westhuizen regarding the leave being without pay, she stated that she still believed that the process had been followed.

ANALYSIS OF THE EVIDENCE AND ARGUMENTS:
24. The matter before me relates an alleged unfair labour practice dispute in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended, where the applicant believes that she was unfairly treated by having the leave she applied for categorised as unpaid leave rather than as urgent special leave and that the respondent unfairly deducted money from her salary in lieu of the categorised unpaid leave. The applicant bears the burden of proof.

25. Much of the dispute is common cause. This includes that the applicant applied for leave to see her family. She did so in September 2022 with the leave dates being in November 2022. It is further common cause that the principal and the applicant differed in respect of the categorisation of the leave. The applicant after seeking advice believed that the leave could be applied for as leave for urgent private matters (my emphasis). This view was given to her by her union. Her interaction with the principal resulted in the principal also seeking advice from the same union but from a different representative of the union. These interactions resulted in conflicting views expressed by the union officials, neither of whom were called to testify.

26. Nonetheless, the applicant then sought further clarity from Bernadette Tataw, a Departmental Directorate employee who engaged Deon Julies to respond to the applicant. He duly did so but for all intents and purposes, his correspondence does not shed any clarity on the situation. He indicates in his email that the applicant can only apply for “Family Responsibility Leave for Urgent Private Matters”. This leave can only be recommended or not by the principal who has the prerogative to do so. He does not elaborate on unpaid leave and also indicates that he does not have a problem with the applicant paying for a substitute teacher.

27. It is evident that the PAM document does not specifically elaborate what constitutes leave for urgent private matters. However, the PAM document does set out specific circumstances relating to Family Responsibility Leave and what should happen in the event that an institution-based employee exceeds the limitations set out in Family Responsibility Leave and Special Leave for Urgent Private Affairs as listed below:

H11.4. An office-based educator shall be granted five (5) working days leave per annual leave cycle if – (PSCBC Resolution 1 of 2012)
H11.4.1. The educator’s spouse or life partner gives birth; or
H11.4.2. The educator’s child, spouse or life partner is sick; and

H11.5. An office-based educator shall be granted 5 working days leave per annual leave cycle if –
H11.5.1. The educator’s child, spouse or life partner dies; or
H11.5.2. The educator’s immediate family member dies.

28. The PAM document also sets out a limitation relating to 14 days for the purposes of the heading “Family Responsibility Leave and Special Leave for Urgent Private Affairs”. The Family Responsibility leave as outlined above forms part of this 14-day limitation unless the Head of Department decides otherwise. It is evident that none of the above situations arose with the applicant and as such in line with the PAM document, she “qualified” for up to 14 days of Leave for Urgent Private Affairs provided that justifiable reasons for the urgency is provided as set out in paragraph H11.6 (my emphasis).

29. The silence of the PAM document most certainly opens up this type of situation to be one for a subjective view. The applicant’s view is that the principal acted subjectively when he did not recommend the leave as applied for. I do not agree with her sentiment. In the absence of an absolute guideline, it is my view that the principal applied the principles of logical thinking and determined that there was no urgency in the applicant’s situation. I concur with this notion as it is evident that the applicant was well aware of when her brother was coming to South Africa; she applied for leave two months in advance; and on her own testimony under oath, she would have accepted that she could take unpaid leave which would have been approved by the principal had it not been for the conflicting situation as described above.

30. It is evident that the applicant was of the view that if she took unpaid leave, she would have to pay for the substitute as in her view this was a common practice at the school. She however did not present any evidence to substantiate this view. Louw’s unchallenged testimony is that annually staff are provided with documents including the leave policy of the school. He admitted that previously, staff were required to pay for substitutes but this had been removed from the policy and was no longer a customary practice. The school paid for the substitute when the applicant was absent.

31. With the PAM document being silent as to what constitutes leave for urgent private matters, one has to adopt a purposive view of the intentions of the wording in the PAM document. The PAM document indicates that an institution-based educator “may be granted special leave to attend to an urgent private matter, the nature of which is such that it warrants such an educator’s absence from work”. From this it is evident that the matter has to be of an urgent nature and is discretionary. The Oxford dictionary defines “urgent” as something that requires immediate attention. This is certainly not the case in this instance.

32. Despite this, the decision to grant or decline such leave lays with an authority, the line manager, who has to make a judgment call whether the leave applied for under urgent private matters, warrants the educator’s absence from work for that defined purpose and urgency. In this instance, the principal, Mr. Louw, exercised his discretion to decline the leave as leave for urgent private matters; he informed the applicant of his decision and reasons; he informed the applicant that she could take unpaid leave and in his motivation for declining that type of leave indicated that the applicant could appeal his decision to the HOD. Interestingly, the applicant did not do so but instead referred a dispute to the ELRC, as is her right. In my view, Louw was fully in his right to decline the leave as categorised by the applicant. The applicant confirmed that it was the principal’s prerogative to approve or decline a leave application.

33. The applicant’s second contention is that the Department deducted money from her salary without her knowledge or permission. While it appears that there was a shortcoming in the communication from the Department to the applicant about her leave being unpaid, it most certainly does not detract from the fact that she took the leave, which had not been approved as leave for urgent private matters, and that in line with the standard practices as described by Robinson, she was eligible to repay the money. She was also informed upfront by the principal that the leave that she wanted to take would be unpaid. I thus do not find that the respondent acted unfairly in this regard.

34. In consideration of the totality of the circumstances presented to me, I am of the view that the principal’s decision not to recommend the leave as leave for urgent private matters falls within the boundaries of the Sidumo test which asks the question “was the decision one that a reasonable decision-maker could not reach?” In view of this, the applicant’s claim of an unfair labour practice thus stands to fail. There was no urgency relating to her request for leave for urgent private matters. Her absence related to a planned family event some two months after her original application was submitted and by taking the leave without it being approved as leave for urgent private matters, it can be reasonably accepted that the applicant was well aware that the leave would be without pay. The deduction related to her receiving her full salary when she in fact was not entitled to it. The deduction was justified.

35. Thus, in consideration of all of the above, I make the following award:

AWARD:
36. The applicant has not discharged the burden of proving that the WCED committed an unfair labour practice towards her. She is not entitled to any relief.


L M Taylor
Commissioner