PANELIST: ADVOCATE J P HANEKOM
CASE NO: ELRC394-26/27WC
AWARD DATE: 01 October 2026

In the matter between:

NAPTOSA obo YASIN BENITO Applicant

and

DEPARTMENT OF EDUCATION – WESTERN CAPE Respondent

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION:

1. This matter was initially set down for a virtual arbitration on 31 August 2026 concerning an alleged unfair labour practice related to benefits. Ms. C. Harris of NAPTOSA represented the Applicant. Mr. T. Seelamo of Labour Relations represented the Respondent.
2. I digitally recorded the evidence heard and concluded on the same day. Both parties thereafter agreed to and requested to submit written closing argument by 7 September 2026. The parties however only submitted their written argument on 9 September 2026. I therefore requested the Council to extent my award due date.

ISSUE TO BE DECIDED:

3. I must decide whether the Respondent committed an unfair labour practice related to benefits.

BACKGROUND:

4. The Respondent has employed the Applicant as an educator from 2020. During 2025 the Applicant attended a 3-day workshop in relation to his studies towards his master’s degree in educational leadership & management.
5. After the Applicant returned to work, he applied for special leave for the three days (30 Sept 2025; 1 Oct 2025; 2 Oct 2025) that he attended the workshop. The School Principal did not recommend the special leave, because the Applicant did not apply for the special leave in advance. The employer did not approve the leave and subsequently several months later deducted the amount of R2 976-18 from the Applicant’s salary, in respect of the three days in question, as leave without pay.
6. The Applicant claimed that the employer committed an unfair labour practice relating to benefits. The Respondent claimed the contrary.

EVIDENCE AND ARGUMENT BY THE APPLICANT:

7. The Applicant was the only witness and further submitted documentary evidence in support of his case.
8. The Applicant confirmed the fact as stated in the background above. The Applicant stated that he did not know that he had to apply for special leave in advance, because he never received induction training on such leave. It was his first time that he applied for such leave. He thought that he could fill in his leave application afterwards when he returned to work. Neither did the employer informed him that the special leave would not be recommended for approval.
9. The Applicant accordingly submitted that the employer committed an unfair labour practice and prejudiced the Applicant by not discussing the issue with him before the disapproval of his leave. The Applicant therefore requested repayment of the amount in question deducted from his salary.

EVIDENCE AND ARGUMENT BY THE RESPONDENT:

10. The Respondent led the evidence of Bernadette Catherine Tataw and Alastair Adams. It further submitted documentary evidence in support of its case.
11. The Respondent’s witnesses stated that special leave is planned leave, unlike sick leave that is unplanned. The Applicant therefore had to apply for such special leave in advance in terms of the Department’s policy contained in PAM (Personnel Administrative Measures), because of operational reasons.
12. Tataw stated that she is a Deputy Director at Human Resources (HR) and that the PAM is applicable to educators. The special leave in terms of the policy must be approved after application in advance. The Applicant needed to come to the principal to discuss the leave in advance and the Applicant must apply for the special leave in advance.
13. Adams stated that he is the principal at the school. The Applicant knew about the workshop a week before the time when he told his colleagues about it. Adams received a WhatsApp message from the Applicant on the morning of the workshop at 04h53 to inform him that the Applicant was going to attend the workshop. Adams only replied to the Applicant’s message at 08h45 that day, because he had to get ready for school, had to make arrangement at school, and had to speak to the circuit manager about the issue. He made it clear to the Applicant in his WhatsApp reply that the Applicant had to apply for the special leave in advance, which he would have to recommend for HR approval. The Applicant failed to follow the procedure; that affected the operations at school. Some classes had to be cancelled to get a teacher to supervise the learners who could not stay in class unattended.
14. The Respondent accordingly submitted that it did not commit an unfair labour practice under the circumstances. The Applicant should have known about the policy and failed to timeously apply for the special leave in advance. The Applicant failed to follow the procedure and therefore failed to discharge the onus of proof.

ANALYSIS OF THE EVIDENCE AND ARGUMENT:

15. I have decided only to focus on those issues I consider relevant.
16. It is common cause that the Applicant may apply for special leave for professional development. Further, the Applicant attended a workshop for the period in question. The Respondent’s policy requires that an application for special leave must be submitted in advance. The Applicant failed to follow the rule. The Applicant’s defence was ignorance of the rule, because he never received induction on special leave and it was his first application for special leave at the time.
17. The employer deducted the amount of R2 976, 18 from the Applicant’s salary as leave without pay. The Applicant claimed that the employer failed to discuss the non-recommendation of the leave with him at the time. He learned seven months later that his special leave was not approved.
18. The Respondent’s witnesses corroborated each other as to the existence of the rule. The Applicant could not dispute their evidence in this regard. The witnesses were honest to testify that the employer is not unreasonable to accommodate the Applicant if possible. However, it was clear from the common cause evidence that the Applicant received the email invitation to attend the workshop from the university at 12h00 on 29 September 2025 the day before the workshop. The Applicant had ample time from then to read the email and to inform his employer on the same day of the workshop the following day. Instead, the Applicant according to his own planning decided only to read his emails at about 22h30 on the evening of 29 September 2025. He then decided to send a WhatsApp in the early hours of the following day, morning of the workshop, to his principal to inform the principal that he would be attending a workshop. Further the Applicant according to his own evidence, felt it was unfair of the principal to only respond to his WhatsApp message at 08h45 that morning when he was already at the workshop. According to him, he expected a response round about 07h00 that morning, because it is a practice to inform the principal before 07h00, if you are unable to come to work, so that arrangements can be made.
19. In my view, the Applicant should have known the rule. He knew about an upcoming workshop that he would attend and that he would have to apply for special leave. He should have enquired about the policy from his union or the principal. The Applicant has been a teacher for about six years and cannot plead ignorance of the rule. The Applicant wrongly assumed that special leave is the same as sick leave where you afterwards apply for such leave. It is clear from the undisputed evidence of the Respondent that special leave may be granted by the employer on conditions approved by the employer. Operational requirements, amongst other pay a role in such applications for special leave, so that the learners may not be disadvantaged. The Applicant now wants to shift the blame for his ignorance on the employer. The Applicant cannot simply assume that his special leave would automatically be granted. He needed to check his emails in time. Further the Applicant, failed to respond to Adams WhatsApp reply that clearly outlined the procedure in respect of special leave applications. One may therefrom safely assume that the Applicant at that stage knew that he failed to follow the procedure. He failed to apply for special leave in advance and he knew that if he afterwards applied for such leave that it probably would not be approved. If not, why did he not discuss the issue with Adams at the time after his return to work and why did he remain silent, until the day when he received the notice of the unpaid leave on or about 15 May 2026? The Applicant bears the onus of proof. We as commissioner will not lightly interfere with the employer’s prerogative not to grant the special leave, because the Applicant failed to follow the procedure. He was the cause of his own fate. On a balance of probabilities, I cannot find the Applicant’s version more probable than that of the Respondent so much so that I reject the Applicant’s version as false.
20. After consideration of the evidence, I find that the Applicant did not discharge the onus or proving that the employer failed to exercise its discretion fairly when it decided to disapprove the Applicant’s late application for special leave.

AWARD:
21. In the premises, I make the following award:

(1) I find that the Applicant, Yasin Benito, did not discharge the onus of proving, that the Respondent, the Department of Education-Western Cape, committed an unfair labour practise related to benefits against him. I therefore dismiss the application.