ELRC812-22/23FS

Panellist: Khuduga Tlale
Case Reference No.: ELRC812-22/23FS
Date of award: 26 July 2023

In the matter between:

SADTU obo Phoofolo, Manku Mitta Applicant

And

Department of Education – Free State Respondent


ARBITRATION AWARD

Details of hearing and representation

1. The arbitration hearing between SADTU obo Phoofolo, MM (“the Applicant”) and Department of Education – Free State (“the Respondent”) was held on 12 July 2023 at the Respondent’s offices in Phuthaditjhaba. The Applicant appeared in person and Mr. B Mbhele, Branch Secretary, represented her. Mr. TS Tsunke, Assistant-Director: Labour Relations represented the Respondent.

2. This proceeding was manually, and digitally recorded. The parties agreed to submit written heads of argument on Wednesday, 19 July 2023.

Issue to be decided

3. The issue to be decided is whether the alleged failure of the Respondent to pay the Applicant accrued leave days when she retired constituted a benefits in terms of section 186(2)(a) of the Labour Relations Act, as amended (“the Act”).

4. In determining the abovementioned paragraph, I must establish whether the Respondent committed an unfair labour practice within the context of section 186(2)(a) of the Act.

Background to the dispute

5. This is a dispute brought in terms of section 186(2)(a) of the Act relating to the provision of benefits to the employee, referred by the Applicant to the Education Labour Relations Council (“the Council”) for arbitration. It is common cause that the Applicant was employed by the Respondent from 09 January 1985 as an Educator, and she earned R47 104, 75. The Applicant submitted her application for retirement to the Respondent on 23 February 2022. This application was approved on 24 March 2022, and she retired from the services of the Respondent with effect from 01 September 2022.

6. The Applicant submitted her pension documents prior to her retirement. The Respondent undertook to pay the Applicant her leave gratuity as soon as possible as per “A1”. Prior to her retirement, she applied for the temporary incapacity leave. The application for temporary incapacity leave was declined on 19 December 2022, but this decision was communicated to her in January 2023.

7. The Applicant referred this dispute to the Council, where it remained unresolved. A certificate of non-resolution was issued and the dispute was then referred for an arbitration. Both parties submitted the bundle of documents and it were marked bundle “A”, and “R”.

Survey of evidence

Applicant

First Witness: Ms. Manku Mitta Phoofolo

8. The witness testified under oath that she was the Applicant in this matter. She states that she had 59.29 accrued leave days as at 31 August 2022 as per “A2”. The Respondent failed to pay her accrued leave days as promised. She was informed that her application for long temporary leave was partially approved on 17 January 2023. She was further advised to provide a strong medical motivation.

9. Under cross-examination, she confirmed that she applied for incapacity leave because she was sick. The reason she applied for incapacity leave was because she exhausted her normal sick leave. She knew that the response of the incapacity leave could be positive, or negative. Documents “R69-R70” was the response of her incapacity application.

10. She did not lodge a grievance after receiving the incapacity outcome because she was advised to approach her medical practitioner, and her union. She was convinced that her application for incapacity was approved when the Respondent undertook to pay her accrued leave days as per “A1”. She retired thinking her incapacity leave was approved. Her accrued leave days were not paid because her application for incapacity was partially approved.

11. Under clarity questions, she stated that she applied for fifty-five (55) incapacity leave days. Her leave was audited, and document “A1” assured her that her accrued leave days would be paid. The Respondent was silent on her application for incapacity, and thought her application was approved. She had 59, 29 accrued leave days as at 31 August 2022 as per “A2”.

Respondent

12. She confirmed that document “A1” assured her that her application for incapacity was approved.

Respondent

First Witness: Mr. Sabata Mohomane

13. The witness testified under oath that he is employed by the Respondent, and he is currently an acting Assistant-Director: Conditions of Services. His duties include leave management, and incapacity leave. He saw the Applicant the first time when she came to their offices to apply for incapacity leave. The application for incapacity was declined. The accrued leave days of the Applicant were supposed to be used for the incapacity leave days that were not approved. The outcome of the incapacity application was sent to the Applicant in December 2022, and she did not lodge a grievance. The Applicant applied for the incapacity leave in the year 2021. The delay to finalize her application was caused by COVID-19, shortage of staff, and they had a lot of incapacity application.

14. Under cross-examination, he stated that he was familiar with document “A1”. They hold back the payment of the leave days due to the declined incapacity leave. They had a list of employees to exit the system in the year 2022. He confirmed that the Applicant served the period notice of eight (8) months’ prior to her retirement. Document “A1” promised to pay the Applicant leave days.

15. The application for incapacity was sent to the Health Risk Manager within five (5) days after receiving it from the employee. The Respondent had thirty (30) days to conclude the Applicant’s assessment. The payment of the accrued leave days had been suspended. They could not pay the accrued leave days prior receiving the outcome of the incapacity application. He confirmed that the Applicant accrued leave days were not paid. COVID-19 could be blamed for the delay of the Applicant incapacity application.

16. He confirmed that they did not comply with thirty (30) days’ time-around to finalize the incapacity application. He confirmed that the Applicant had 59, 29 accrued leave days as per “A2”. He confirmed that the Applicant applied for fifty-one (51) incapacity leave days, for the period 22 September 2021 to 10 December 2021. The Applicant’s leave was not audited. He confirmed that they failed the Applicant.

17. Under re-examination, he stated that the leave days were not paid due to the impact of the incapacity leave on her payment. The Applicant was given an opportunity to remedy the situation. The Respondent’s operations were not normal in the year 2021.

18. Under clarity questions, he stated that they received the Applicant’s incapacity application in the year 2021, but not sure on which date. The Applicant’s incapacity application was sent to the Health Risk Managers in February 2022. The leave section became aware in June 2022 that the Applicant was retiring on 01 September 2022. The Applicant’s incapacity was delayed by the Respondent head office. He confirmed that the assessment was not done within thirty (30) days. He confirmed that they did not follow procedure in this matter. He stated that it was not fair to hold back the payment of the leave days.

Survey of arguments

Applicant

19. The Applicant’s representative stated that the Respondent undertook to pay the accrued leave days, but failed to do so. The Respondent confirmed that they did not comply with thirty (30) days’ time-around plan to finalize the incapacity assessment. According to the Applicant’s last pay slip, she had 59, 29 accrued leave days as at 31 August 2022. The Respondent waived the right to request the Applicant to lodge a grievance about the declined incapacity leave after her retirement.

Respondent

20. The Respondent representative did not submit written heads of argument as agreed.

Analysis of evidence and arguments

Introduction

21. Section 186(2)(a) of the Act, states that an unfair labour practice is any unfair act or omission that arises between an employer and an employee involving-

• unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to benefits to an employee.

22. The onus to establish that the conduct complained of constitutes an unfair labour practice within the meaning of Section 186(2) of the Act rests on the Applicant. The Applicant had to show that her complaint was justifiable under what constitutes a benefits as contemplated by the unfair labour practice jurisdiction in terms of the Act. The Applicant must therefore be able to lay the evidentiary foundation for her claim of an unfair labour practice.

23. It is common cause that the dispute relates to non-payment of the accrued leave days. In Apollo Tyres South Africa (Pty) Ltd v CCMA and others (DA 1/11) (2013) ZALAC 3; (2013) 5 BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC) (handed down on 21 February 2013), the Court held the definition of benefit, as contemplated in section 186(2)(a) of the LRA was not confined to rights arising ex contractu or ex lege, but included rights judiciary created as well as advantage or privileges Employees have been offered or granted in terms of a policy or practice subject to the Employer’s discretion.

24. Per Apollo, a benefit is something extra to remuneration granted at the employer’s discretion. The leave is a statutory entitlement that exists independent and separate as 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. It is the Applicant’s case that the Respondent did not comply with the policy when they failed to pay her 59, 29 accrued leave days.

25. The question that need to be asked is whether the leave payment is a benefit? It is common cause that the Applicant was entitled to be paid the accrued leave days when she retired, therefore, this dispute falls within the definition of a benefits as per the Respondent policy.

Incapacity application

26. It is the Respondent’s version that the Applicant applied for the incapacity leave for the period 22 September 2021 to 10 December 2021.The Applicant submitted her incapacity application in the year 2021. It is the Respondent’s further version that the Applicant’s incapacity application was sent to the Health Risk Managers in February 2022. This application was sent for assessment six (6) months prior to the termination of the Applicant’s service due to retirement. It is common cause that the Respondent approved the Applicant’s retirement due to age on 24 March 2022.

27. It is clear that the Respondent was well aware that come 01 September 2022, there will be no employer-employee relationship between them. Chapter H.5.3.1 of PAM state that the HOD must, within thirty (30) working days after receipt of both the application form, and medical certificate, approve, or refuse the temporary incapacity leave granted conditionally. In this matter, it is common cause that the Applicant incapacity’s application was not handled within thirty (30) working days.

28. The Respondent played a blaming game between the district office, and head office, about the delay of the Applicant’s incapacity leave. There was no evidence led during the proceeding, how the Respondent tried to expedite the Applicant assessment after becoming aware of her retirement. I do not agree with the Respondent’s version to say COVID-19, and shortage of staff delayed the Applicant assessment. I, therefore, conclude that there was no justifiable reason for the delay of the Applicant assessment prior to her retirement.

29. It is common cause that the Applicant was notified about the partially approved incapacity leave in January 2023, almost five (5) months after her retirement. The crux of the Respondent’s case was that the Applicant failed to lodge a grievance after receiving the outcome of her incapacity assessment. Chapter H.5.3.14 of PAM states that the HOD must cover the period of absence in accordance with the employee’s written notification, or if the educator fails to notify the HOD/DG, or if the annual leave credits are insufficient, the relevant period of absence must be covered by unpaid leave.

30. The Applicant’s incapacity leave was approved partially as follows; 22 September 2021 to 07 October 2021 was approved, and 08 October 2021 to 10 December 2021 was not approved. It is common cause that the Applicant did not respond to the Respondent’s letter dated 19 December 2022, whether her unapproved incapacity leave must be allocated as unpaid leave or taken as capped leave. No evidence was led during the proceeding whether or not the Respondent took decision about unapproved incapacity leave.

31. The question that needs to be asked is whether the Respondent is still having remedy to recover the unapproved incapacity leave? There was an employer-employee relationship when the Applicant applied for the incapacity leave, but none when the incapacity was partially approved. It will not be practical for the Respondent to implement leave without pay for the unapproved incapacity leave. It will amount to an unreasonable, and arbitrary exercise if the Respondent deduct the unapproved incapacity leave from the accrued leave days of the Applicant.

32. I agree with the Applicant’s version to say when she retired, even though she did not receive anything in writing, she thought her incapacity leave was approved. The Respondent only communicated the outcome of her assessment after she enquired about the payment of her accrued leave days. The Respondent cannot penalize the Applicant because they are the ones to be blamed for this delay. I, therefore, conclude that there is no working relationship between the Applicant, and the Respondent to penalize her about the unapproved incapacity leave.

Whether the Applicant is entitled to be paid accrued leave days

33. The Minister of Basic Education published the revised Personnel Administrative Measures (“PAM”) in Government Gazette no. 39684 on 12 February 2016. PAM was already in place when the Applicant retired with effect from 01 September 2022. In terms of Chapter H.4.5.2 of PAM, during the periods 01 July 2000 to 31 December 2000, and 01 January 2001 to 31 December 2001, all institution based educators accrued 5, and 10 working leave respectively, or a pro rata number of leave days accrued prior to 01 July 2000.

34. Chapter H.4.5.3 of PAM states that the pay-outs in respect of such leave credits must be made in the event of:
• H.4.5.3.1: death.
• H.4.5.3.2: retirement, including early retirement.
• H.4.5.3.3: medical boarding.

35. It is common cause that the Applicant retired from the service of the Respondent with effect from 01 September 2022. It is the Applicant’s undisputed evidence that she accrued 59, 29 leave days as on 31 August 2022 as per “A2”. I, therefore, conclude that the Applicant is entitled to be paid her accrued leave days in terms of Chapter H.4.5.3.2.

Conclusion

36. In these circumstances, I find the failure of the Respondent to pay the accrued leave days of the Applicant was arbitrary or motivated by an unacceptable reason. The Applicant had substantiated her claim that she was subjected to an unfair conduct by the Respondent relating to benefits.

Remedy

37. In terms of Section 193(4) of the Act, an arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation. The Applicant seeks payment of her accrued leave days.

38. I will order the Respondent to pay-out the Applicant 59, 29 accrued leave as follows:

R47 104, 75, per month x 12 months = R565 257, 00, (notch).
Formula for leave pay-out is: notch (R565 257, 00) x 59, 29 leave days / 260.714 (working days per year) = R128 547, 33

Award

39. The Applicant, Ms. Manku Mitta Phoofolo, had proved that the Respondent had committed an unfair labour practice by failing to pay-out her 59, 29 accrued leave days.

40. The Respondent, Department of Education – Free State, is ordered to pay the Applicant the total amount of R128 547, 33, this being her accrued leave days pay-out, and which must be paid into the Applicant’s bank account, the details of which are known to the Respondent, by no later than 15 August 2023.

Signature: 
Commissioner: Khuduga Tlale
Sector: Education