02 October -ELRC94-24-25GP

IN THE ELRC ARBITRATION
BETWEEN: ELRC94-24-25GP

DANIEL MAHLANGU “the Applicant”
and

DEPARTMENT OF EDUCATION & TRAINING – GAUTENG “the Respondent”

ARBITRATION AWARD

Case Number: ELRC94-25/26GP

Date of award: 30 September 2025
ELRC Arbitrator: Gcina Mafani

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.za

DETAILS OF HEARING AND REPRESENTATION

1.1. The matter was set down for arbitration on the 18th of June 2025. The arbitration proceeded for several days and concluded on the 15th of September 2025.
1.2. The arbitration was held under the auspices of the Education Labour Relations Council (ELRC) in terms of Section 186 (2) (a) of the Labour Relations Act (the LRA) Benefits, Unfair Leave without Pay. The hearing was conducted face to face at the Tshwane District Office.
1.3. The Applicant Daniel Mahlangu attended the hearing and was represented by Mr. Johannes Makaleng the SADTU official. The Respondent was also present and represented by Mr. George Mbonde the Labour Relations Officer of the Respondent.
1.4. Before the start of the arbitration hearing both parties submitted their bundles. The Respondent submitted her bundle of documents which was later marked as Exhibit “A1” The Applicant also submitted theirs which was later marked Exhibit “R” then later after much deliberation further documents were submitted by the Applicant.
1.5. The parties agreed to file closing arguments by the close of business hours on the 15th of September 2025.
1.6. The submissions of both parties were carefully considered but will not be repeated here as contents basically mirror what was put to parties during the leading of evidence and cross examination in the arbitration.

FACTUAL BACKGROUND

2.1. The Applicant is currently employed by the Respondent at Central Secondary School on a permanent basis with Persal Number 15792889.
2.2. The Applicant was absent from work from the 7th of August 24 to 30th September 2024.
2.3. The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186(2)(a) of the Labor Relations Act 66 of 1995 (LRA.)
2.4. The Applicant is seeking that the Respondent pay him for the period when he was sick from the 7th of August 24 to 30 September 2024.

ISSUE TO BE DECIDED

3.1. The Commissioner is required to determine whether the Respondent was fair in deducting the Applicants salary and implementing leave without pay.
3.2. Whether the Applicant has complied with the Respondent’s leave policy.
3.3. Whether the proof of absence submitted by the Applicant was authentic.

APPLICANT’S EVIDENCE AND ARGUMENTS

4.1. During the Applicant’s testimony, the Applicant testified that he consulted his Psychiatrist Dr. Mogotlane, on the 7th of August 2024. Due to the severity of his condition, he was admitted to Mediclinic and declared unfit for duty from the 7th of August 2024 until 30 September 2024.
4.2. On the 14th of August 2024, he paid an amount of R2000 to his Doctor for the completion of the PILIR forms and the Medical Report. The Applicant submitted his bank statement as proof of this payment.
4.3. Following his discharge, the Applicant continued attending consultations with his Doctor as an out-patient from the 15th of August 2024. On the 21st of August 2024 he collected the completed PILIR forms from his doctor.
4.4. He testified that on the 7th of August 2024 immediately after his admission he sent a medical certificate to his Supervisor, Ms. Maake via WhatsApp. The following day, hospital staff assisted him in sending the same certificate by email.
4.5. On the 22nd of August 2024, the Applicant submitted the Pillar forms at the school. As he was unable to find Ms. Maake, he handed the documents to Ms. Mohau Komane, the Administration Clerk.
4.6. On the 18th of October 2024, the Applicant realized that he had not been paid for the period during which he had been officially booked off sick. Upon enquiry with his supervisor, Ms. Maake, he was informed that he had not submitted the Pillar forms.
4.7. With the assistance of his Union, the Applicant lodged a grievance on the 1st of November 2024. A grievance meeting was held with Mr. Makitla, Mr. Mashishi, Mr Tshwane, and Mr. Mahlangu. During that meeting, he was instructed to request his Doctor to complete another set of Pillar forms so that he could be paid.
4.8. The Applicant maintained that he had submitted the Pillar forms to his supervisor through the Administration Clerk. He further stated that learners were not prejudiced by his absence, as a substitute teacher had been appointed from the 26th of August 2024. He reiterated that his absence was communicated to his supervisor through both WhatsApp and email.
4.9. The Applicant conceded that in July 2024, he wrote a letter authorizing the implementation of leave without pay, as he had extended his sick leave without his Doctor’s authorization.
4.10. He maintained, however, that he was never informed by either his Supervisor of the HR Director that leave without pay would in fact, be implemented. He further asserted that he had submitted the required documents on the 22nd of August 2024.
4.11. The Applicant acknowledged that he was familiar with the leave policy and confirmed that the leave in question fell under Temporary Incapacity Leave, as his annual sick leave entitlement had been depleted. He also conceded that, under temporary Incapacity Leave, he was required to submit the PILIR forms.
4.12. Under cross examination, the Applicant stated that he was unable to clarify the inconsistencies in the PILIR forms because he was not a medical practitioner. He went so far as to argue that the Respondent should have visited his Doctor to authenticate the documents contained on page 27 to 31. The Applicant was unable to explain why he had not requested his Doctor to attest to an affidavit in order to clarify the inconsistencies.
4.13. The Applicant went to great lengths in describing how the Principal, Ms. Maake, treated him unfairly.
4.14. He stated that page 27 forms part of the original PILIR forms submitted on the 22nd of August 2024, although he was only able to photocopy that single page.
4.15. Following the receipt of the grievance outcome, the Applicant returned to his Doctor for assistance. At that stage, in February 2025, the Doctor completed a third set of PILIR forms.
4.16. The Respondent submitted that the documents provided by the Applicant contained three different dates, which created confusion. According to the Respondent, only the Doctor could explain these discrepancies. On page 27, the Doctor recorded the consultation period as 7 August 2024 to 30 September 2024, but the document itself was signed on the 21st of August 2024.
4.17. Furthermore, the Doctor allegedly made an error on page 30 and issued another document dated 31 October 2024. The Respondent emphasized that only the Doctor could clarify these inconsistencies.
4.18. In addition, one of the Doctor’s documents stated that the Applicant was unfit for duty from the 7th of August 2024 to 30th September 2024 on the grounds that he had been admitted, however, the Applicant testified that he was discharged on the 15th of August 2024. The Respondent submitted that this was another inconsistency that the Doctor would have addressed for the Respondent.
4.19. In response, the Applicant stated that these documents served as proof that he had them in his possession, and that the first letter simply represented the date on which the Doctor had signed the first set of PILIR forms.

DOCTOR MAKITLA SECOND WITNESS

4.20. He testified under oath and stated that he is the Secretary for SADTU. He testified that he had received the grievance from the Applicant, who alleged that the Respondent had implemented leave without pay unfairly and unprocedural. Following this, he wrote a letter to the District Labour Unit. He was subsequently called by Mr. Mashishi to substantiate the claims, and he attended that meeting with Mr. Mahlangu.
4.21. Five days later, he was called to another meeting with the District Director of HR, Mr Tshwane. The outcome of that meeting was that the Applicant would be permitted to resubmit the PILIR forms.
4.22. Mr. Makitla further noted that the respondent had not provided the Applicant with written communication regarding the September salary deduction.
4.23. Under cross examination, he was asked whether he had made any effort to check if the PILIR forms had been submitted at the school, he responded that he had instructed the Applicant to follow up with the Administration Clerk to establish what had happened to the forms.
4.24. The Respondent, however, maintained that the Applicant had failed to submit the PILIR forms. They argued that non-submission constitutes non-compliance with the leave policy, which also poses the risk of not securing a substitute teacher- a point that was conceded.
4.25. It was further conceded that non-compliance attracts leave without pay, though Mr. Makitla added that enforcement of this varies from one school to another.
4.26. He stated that he was unable to provide further assistance to the Applicant due to his own illness, after which another individual took over the case.
4.27. The respondent ultimately submitted that the Union had failed its member by not taking steps to clarify the inconsistencies with the Doctor concerned.

RESPONDENT’S EVIDENCE AND ARGUMENT

Ms. KELEBOGILE HELEN MAAKE (PRINCIPAL OF CENTRAL SECONDARY SCHOOL)

5.1. Ms. Maake testified that her relationship with the Applicant, Mr. Mahlangu has always been professional and cordial, similar to her relationship with any other educator at Central Secondary School.
5.2. She testified that she recommended the implementation of Leave without pay because she had not received the PILIR forms from the Applicant for September 2024. She further explained that Mr. Mahlangu had been on PILIR leave since 2023 and continued to take PILIR leave throughout 2024. As such, he was familiar with the procedure requiring that PILIR forms be completed and submitted together with the supporting medical reports.
5.3. According to her testimony, the Applicant sent a medical certificate via WhatsApp and indicated that the PILIR would follow. She emphasized the forms were necessary in order to secure a substitute teacher, However, she stated that the Applicant did not submit the forms as expected.
5.4. On the 23rd of August 2024. She called the Applicant to inform him that she was still waiting for the PILIR forms so that she could request a substitute teacher. After that call, she wrote to the Director of HR requesting the leave without pay be implemented, since she had not received the forms.
5.5. Ms. Maake also noted that between the 29th of July 2024 and the 6th of August 2024, the school was without a substitute teacher because the Applicant was absent without providing any explanation. Similarly, on the 22nd and 23rd August 2024, the Applicant was absent again, during that period, he wrote a letter consenting to the implementation of leave without pay.
5.6. She testified that such conduct compromises learner’s education, as classed are left unattended or other educators are forced to take on additional work. She recalled another instance where the Applicant absconded from work, which compelled her to drive to his home to serve him with abscondment forms. She described a pattern where the Applicant delayed submissions, often taking time before providing the required documentation.
5.7. On the 7th of August 2024, the Applicant sent her a sick note via a WhatsApp, promising in that very message to send the PILIR forms by email the following day. She expressed surprise that the Applicant later claimed to have submitted the forms on the 22nd of August 2024, yet when she called him on the 23rd of August 2024, he did not mention this or suggest that she check with the Administration Clerk. She reiterated that she had informed the Applicant during that call that leave without pay would be implemented.
5.8. Ms. Maake stressed the importance of compliance with the leave policy, explaining that failure to do so negatively impacts both learners and educators. Without a substitute teacher, learners are left without instruction, or other educators must take on the additional load, going the extra mile to assist.
5.9. She denied being an authoritarian, stating that if she were, the Applicant would have received multiple recommendations for leave without pay. She further explained that even now the Applicant continues to absent himself without following proper procedures, and if she were not lenient, the proceedings would have been for a different reason entirely.
5.10. She also denied that her relationship with the Applicant was strained, stating that it is up to the Applicant to prove such claims.
5.11. She further denied that the PILIR forms could have been lost, asserting that the school has never lost documents.
5.12. The Applicant’s representative submitted that the Applicant would not have paid the doctor to complete the PILIR forms only to fail to submit them. In response, Ms. Maake stated that she does not dispute that a payment was made to the Doctor but emphasized that what mattered to her was that she did not receive the PILIR forms.
5.13. She concluded by stating that she had requested the Director of HR to process leave without pay in order to enable her to request a substitute teacher. How the rest of the process was handled, she added, could only be explained by HR.

SECOND RESPONDENT’S WITNESS
STEPHEN TSHWANE (THE DISTRICT DIRECTOR HR)
6.1. Mr. Tshwane testified under oath and stated that he had received a submission from Central Secondary School. Upon reviewing it for compliance, he discovered that the submission did not include the required PILIR forms, which meant it was automatically deemed non-compliant. In such cases, leave without pay is implemented.
6.2. He testified further that the Principal serves as the link between the District and the school. The Principal submits the leave applications to the District every Friday.
6.3. He stated that the school had submitted a medical certificate with the application. However, in such circumstances, both the PILIR forms and a medical report were required. It became clear that the school needed a substitute teacher because the learners were adversely affected. He therefore had to create a post for a substitute teacher to be appointed. For several weeks, the learners had been without a teacher.
6.4. He also testified that the meetings were held between the Applicant, his Union Representatives, and the Department. He was asked to mediate because the Applicant had complained about not being paid. He testified that he requested the Applicant to submit his PILIR forms, as this would help determine whether the implementation of leave without pay had been unfair. Another reason for requesting the forms was that they were required for audit purposes.
6.5. He further testified that, unfortunately the Applicant did not have the documents. The Applicant stated that he had submitted the PILIR forms to the school Principal. He was then advised to obtain copies so that his payment issue could be resolved amicably.
6.6. He testified that the submission deadline had already lapsed by that time. Educators are required to report their illness as soon as possible. If hospitalized, they must submit both the medical report and the PILIR forms within five days. The Applicant went on leave on the 7th of August 2024 while the meeting took place in February 2025. The delay in submitting the required documents was therefore excessive.
6.7. During cross examination, Mr. Tshwane was asked whether the District ought to have informed the Applicant directly that he was non-compliant, given that the Principal is said to be the link. He responded that the District communicates with the Principals, and it is the Principals who in turn communicate directly with the teachers.
6.8. He reiterated that the District had not received the required documents, which is why leave without pay was implemented.
6.9. The Applicant submitted that the reason he was not paid was because he had submitted the PILIR forms in October. Mr. Tshwane responded that this was precisely why he had insisted on the PILIR forms to verify whether they had been submitted on time. He further stated that if the Applicant had indeed submitted the forms on the 31st of October 2024, they would have been out of time, since his leave commenced on the 7th of August 2024.
6.10. The Applicant argued that it was unfair to implement leave without pay, as the substitute teacher had already been appointed and the learners were no longer negatively affected. Therefore, he believed he should have been paid.
6.11. The Applicant further questioned why the department had also deducted his September salary. Mr. Tshwane responded that the department implemented the deductions based on the school’s submission, and that the school was aware of the duration of the Applicant’s absence.
6.12. Finally, the Applicant asked why the department had implemented leave without pay without communicating with him directly. Mr. Tshwane explained that it is the Principal’s responsibility to communicate with the Applicant, not the department.
6.13. The Applicant submitted that the District lost his documents, the district was only able to appoint the substitute teacher because they had received the PILIR forms, they can’t make that appointment without the PILIR forms. Mr. Tshwane denied that the District received or that they lost the documents.
ANALYSIS OF EVIDENCE

7.1. I intend to offer brief reasons in my analysis as per S 138 (7) of the LRA as amended, which states that, within 14 days of the conclusion of the arbitration proceedings- the Commissioner must issue an arbitration award with brief reasons.
7.2. This dispute falls within the purview of Section 186(2) of the Act in that it revolves around the alleged unfair act which arose between the Applicant (the Employee) and the Respondent (the Employer) involving an alleged unfair conduct by the Respondent relating to the provision of benefits to the Applicant.
7.3. It is common cause that the Applicant Mr. Mahlangu went on leave on the 7th of August 2024. The leave policy clearly requires that an educator who is ill on Temporary Incapacity Leave must submit both a medical certificate and the prescribed PILIR forms to the Principal within five days.
7.4. The Onus in an unfair Labour Practice dispute falls on the Applicant. The Applicant must prove on a balance of probabilities, not only the existence of the labour Practice but also that it was unfair. This was supported in Randles v Chemical Specialities Ltd (D286/10) [2011} 8 BLLR 783 (LC) where the Court held that while the incidence of Onus is a substantive law matter, in unfair labour practice claims it is generally accepted that he who alleges an unfair labour practice must prove the allegation.
7.5. The Applicant testified that he had submitted the PILIR forms to the Administration Clerk at the school. However, the Applicant failed to call the Administration Clerk as a witness to confirm this crucial allegation. The Administration Clerk was an available witness who could have corroborated the Applicants version, yet no such evidence was placed before the hearing.
7.6. In Tshishonga v Minister of Justice and Constitutional Development and another (2007) 28 ILJ 196 (LC), the Court held that an adverse inference must be drawn where a party fails to testify or call a witness who is available and able to clarify the facts. Such a failure naturally leads to the inference that the party fears the evidence may expose facts unfavourable to him or even damage his case.
7.7. Applying this principle, the Applicant’s failure to call the Administration Clerk suggests that no such submission of the PILIR forms was made, or at the very least, that the Applicant cannot substantiate his version. His uncorroborated testimony should therefore be treated with caution.
7.8. The Respondent’s version remains consistent and credible, The District never received the PILIR forms from the school Principal, as required by policy. The Applicant bears responsibility for ensuring compliance within the prescribed time frames. His inability to produce supporting evidence, particularly from the Administration Clerk, fatally weakens his case.
7.9. PILIR and related public service authority make clear that temporary incapacity leave must be supported by the prescribed PILIR documentation within the stated time frames and that an employer is entitled to treat unexplained or undocumented absence as leave without pay. The Applicant’s alleged October submission would be out of time in relation to leave that began on the 7th of August 2024 and therefore would not defeat the Department’s lawful implementation of leave without pay.
7.10. The Applicant argued that the Respondent should have communicated with him directly before implementing leave without pay. However, the evidence demonstrates that communication did in fact occur. The Principal, who is the designated link between the school and the district, testified that on the 23rd she called the Applicant Mr. Mahlangu after realizing that he had not submitted the PILIR forms as promised in his WhatsApp message of the 7th of August 2024. During that call, she explicitly informed the Applicant Mr. Mahlangu that if he failed to submit the PILIR forms, leave without pay would be implemented.
7.11. Critically, the Applicant Mr, Mahlangu did not dispute this evidence. He did not claim during the call to have submitted the PILIR forms the previous day, nor did he challenge the Principal’s version during the proceedings. On the same day, the Principal formally communicated with the District, requesting leave without pay and pleading for a substitute teacher due to the learner’s ongoing disadvantage.
7.12. This uncontested evidence shows that:
7.12.1. Mr. Mahlangu was in-fact warned of the consequences of failing to submit the PILIR forms
7.12.2. The Principal acted transparently and in accordance with the policy, both in alerting Mr. Mahlangu and reporting to the district.
7.12.3. Mr. Mahlangu’s assertion that there was no communication is contradicted by the undisputed evidence on record.
7.13. In Klaas Nkosi & NUM vs Eskom Holdings & Others (JR 251/2011) 2016 ZALC JHB 152 The Court held that appropriate weight should be placed on uncontested evidence.
7.14. It would appear that the Applicant’s (Mr Mahlangu) procedural fairness argument could not be sustained. I am satisfied that the communication requirement was satisfied through the Principal. Failure lied with the Applicant Mr. Mahlangu, who ignored the warning and failed to provide the required documentation timeously.
7.15. The Respondent argued that the documents belatedly submitted by the Applicant Mr. Mahlangu were contradictory, with the dates changing each time a new submission was made. Recognising this inconsistency, the Applicant was advised to request clarification from his Doctor in order to resolve the discrepancies.
7.16. Despite this advice, the Applicant failed to obtain such clarification. He did not secure an affidavit from his Doctor, either after the grievance meeting or during the arbitration proceedings. Instead of discharging this duty, the Applicant shifted responsibility onto the Respondent, arguing that the Respondent should have called the Doctor for clarification. This position is fundamentally flawed. The burden of proof lies with the Applicant to demonstrate that he was legitimately booked off by his Doctor and that his documents are authentic and that his leave was compliant with the PILIR requirements. It was not for the Respondent to call the Applicant’s own Doctor to prove his case.
7.17. The Applicant was the one who stood to benefit financially if his absence was accepted as legitimate incapacity leave. Accordingly, he carried the responsibility to place clear and credible medical evidence before the Arbitrator. His failure to do so leaves the Respondent’s version uncontested and reinforces the correctness of implementing leave without pay.
7.18. It is therefore my finding that the Applicant has failed to demonstrate that
• he submitted the PILIR forms with the Principal,
• that the documents that he submitted subsequently were authentic and
• that he complied with the leave policy.