ARBITRATION
AWARD

Commissioner: Grace Mafa-Chali
Case Number: ELRC1461-24/25LP
Date of Award: 04 September 2025

In the arbitration between:

Rirhandzu Petronella Nyathi Applicant
And

Limpopo Department of Education Respondent

THE DETAILS OF THE HEARING AND REPRESENTATION

1. The arbitration proceedings were held on 14 July 2025 at Giyani Government Offices; and on 30 July 2025 at B N Ntsanwisi Primary School, Lulekani in Phalaborwa, Limpopo Province
2. The Applicant was in attendance and represented by SADTU official, Mr Hezekiel Madire. The Respondent was represented by Mr Eric Nyathela, the Deputy Director, Labour Relations Unit of the Respondent.
3. The arbitration proceedings were held under the auspices of the ELRC in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995, as ameded (the LRA).
4. The arbitration award is issued in terms of section 138(7) of the LRA, the hearing was digitally and manually recorded.

ISSUES TO BE DECIDED

5. I am required to determine whether or not the Respondent committed an unfair labour practice by declining the Applicant’s application for Temporary Incapacity Leave outside of the 30 day period as prescribed in the provisions of Policy and Procedure on Incapacity Leave and Ill Health Retirement (PILIR Policy).
6. If so, I must determine the appropriate relief in terms of the Respondent’s decision to deduct 102 days from the Applicant’s salary.

BACKGROUND TO THE DISPUTE

7. The Applicant is currently employed as a P1 Educator at BN Ntsanwisi Primary School in Lulekani, Mopani District, Phalaborwa in Limpopo Province.
8. It is common cause that the Applicant made an application for temporary incapacity leave for the period 03 June 2024 to 03 December 2024.
9. Her application was returned to her because she had attached the outdated report of the Occupational Therapist (OT). Subsequently, the Applicant resubmitted the application with the correct OT report, on 30 August 2024.
10. The Respondent processed the Applicant’s resubmitted application; and 05 December 2025, she was informed that her application was declined. The Applicant has been absent from school for the period of the incapacity application and returned to work on 04 December 2024.
11. The Applicant lodged an appeal against the decline of her application which was dismissed in March 2025. Subsequent to that, the Respondent informed the Applicant that it will start deducting from her salary with effect from April 2025. The Applicant’s salary was deducted at the time the arbitration commenced, but the Respondent submitted that it was not for this application but for another unpaid leave of 2023.
12. The Applicant submitted that the Respondent delayed to deal with her temporary incapacity leave application and failed to inform her of the outcome of the application within 30 days prescribed by Clause 7.3.5.1. (e) in the PILIR Policy.
13. The Respondent submitted that the Applicant herself was the cause of the delay in processing her temporary leave application and therefore her claim must be dismissed. It was argued that the Applicant deliberately submitted the application in terms of PILIR and in terms COIDA at the Department of Employment and Labour at the same time, even though she was advised that the two processes cannot be done simultaneously.

PARTIES’ EVIDENCE AND ARGUMENTS

Applicant’s Evidence
Rirhandzu Petronella Nyathi testified under oath as follows:

14. The form on Page 43 of Bundle R is her application for temporary incapacity leave for long period. It was filled in by her and her doctor, on Page 44 to 47 of the form. Her signature is on Page 47. She completed the form on 03 June 2024.
15. After completion of the form, she submitted it to the Principal on the same date, 03 June 2024. Afterwards, she received communication that her application was returned for her to obtain the Physiotherapist report. She received the communication from the district office on either the 14 or 15 July 2024, although the said letter is dated 09 July 2024.
16. She then consulted with the OT and she sent the OT report to Gracious, who works at the district office on 12 August 2024. Page 12 of Bundle R is a copy of the application form for temporary incapacity leave which she submitted previously as they told her to submit only the OT report.
17. After submission of the report, she did not receive any response until on 04 December 2024 when she received the correspondence from the school Principal, that her application for long incapacity leave has been declined and she could appeal. The correspondence is dated 21 November 2024. At that the time, she had already returned to work at BN Ntsanwisi Primary School on 03 December 2024.
18. Around September or October 2024, she made a telephonic follow-up with Gracious at the district office about her application, and she was told that there was no response yet.
19. The reason for the decline of her application for temporary incapacity leave is no sufficient medical information to justify the period of absence.
20. According to Clause 7.3.3 of the PILIR Policy, “the employer must within 5 working days from receipt of the employee’s application for temporary incapacity leave, verify that the employee has completed and signed Part A, B and C of the application form and has obtained the medical practitioner’s inputs as per Part D of the application. If the employee submits an incomplete and unsigned application form, it should not be accepted and must immediately be returned to the employee for completion and/or signature, and the returned form must be resubmitted within ten working days and the day on which the employee resubmits his/her complete and signed application to the employer will be deemed the date of receipt for purposes of the PILIR and Leave Determination.”
21. Clause 7.3.3.2 of the PILIR Policy further provides that “The employer must within 5 working days from the date the employee’s application for temporary incapacity leave conditionally grant a maximum of 30 consecutive days for temporary incapacity leave with full pay subject to the outcome of his/her investigation into the nature and extent of the employee’s incapacity. The employee must accordingly be notified in writing, use the example of the pro forma letter at Annexure C.”
22. Clause 7.3.5.1 (e) reads as follows: “Employer must within 30 days after receipt of both the application form and medical certificate referred to in paragraphs 7.1.4 and 7.1.5.4, approve or refuse temporary incapacity leave granted conditionally or where applicable the approval or refusal of additional temporary incapacity leave. In making a decision, the employer must apply his /her mind to the medical certificate (with or without describing the nature and extent of the incapacity) contemplated in paragraph 7.1.5.2 and medical information/records contemplated in paragraph 7.1.5.4 (if the employee consented to disclosure), the Health Risk Manager’s advice, the additional information supplied by the employee in paragraph 7.1.5.3 (if any) and all other information available to the employer and based thereon approve or refuse the temporary incapacity leave granted conditionally, on conditions that the Employer may determine e.g. to instruct the employe to return to work while secondary assessment taken. Such an instruction should however be considered and applied with circumspect. However, should the employee fail to adhere to such an instruction, he/she exposes himself to possible disciplinary action. Please use Part G of the application for purposes of the decision-making process.”
23. After submission of the OT report to Ms Ndhibane on 14 August 2024, she did not receive the written conditional approval of her application within a period of 30 days from the employer. She only received the feedback from the employer on 04 December 2024 regarding the outcome of her application. She was not informed to go back to work immediately after 30 days lapsed.
24. Page 131 of Bundle R is the letter from the District Director dated 14 March 2025 informing her that her long incapacity leave application has been declined for the period 03 June 2024 to 03 December 2024, and also gave reasons for the decline as well as PHS recommendations. The letter also informed her that the department will begin to recover the 102 days that have since been lost. The letter is on Page 83 of Bundle A dated 21 November 2024. They should have told her to report for duty on 21 November 2024.The letter does not indicate she must report back to work. The salary deductions commenced from April, May, June and July 2025.
25. The reason she did not submit the updated report was that she stopped going to the Physiotherapist sessions due to financial constraints and they did not help her, as she was only given the massage and injections.
26. PHS was supposed to attend to her application but they said the report of the OT was more than 6 months old. She obtained a new OT report 2 weeks thereafter and submitted it on 05 August 2024.
27. She prayed that the decision to deduct monies from her salary be declared null and void, and the Respondent must not deduct monies from her salary monthly as the Respondent did not follow the correct procedure to decline her application; and further that she also be reimbursed for the deductions already made.
28. The reason for that remedy is that her application was submitted on 03 June 2024 to the Principal and the Principal must submit it to the District Office within 5 days as the PILR Policy provides. The Respondent should have dealt with her application in 30 days. She does not have control as to when the Principal would submit her application to the District Office.
    The Applicant closed her case.

Respondent’s Evidence

29. On 30 July 2025, at the commencement of the arbitration proceedings, the Respondent made a formal application to supplement the Respondent’s documentary evidence. As the Applicant opposed the application, I took oral submissions on the reasons why the documents were not submitted with the bundle of documents when the arbitration proceedings commenced and the relevance of such documentary evidence. The documentary evidence was in relation to the outcome of the application for COIDA to show that the Applicant did not apply in terms of the correct process as her application was injury on duty instead. It was submitted that the Applicant can be examined based on the new documentary evidence. The Respondent argued that it was the Applicant’s evidence that the Respondent did not follow correct procedure to deal with her PILIR application. The Respondent wished to show that the Applicant followed two parallel processes for the same incident of injury on duty, ie PILIR and COIDA.
30. The Applicant opposed the application on the basis that the Respondent had ample opportunity to present the documentary evidence in the previous sitting so that the Applicant can be cross-examined on the evidence on 14 July 2025. The new documentary evidence would be prejudicial to the Applicant because she has already closed her case and she cannot re-open her case for the Respondent’s evidence.
31. After having listened to the oral arguments presented by both parties before me and having considered them and applying my mind, I made a ruling and dismissed the Respondent’s application, on the basis that from the first day of the arbitration process, it was the Respondent’s defence that the Applicant followed two processes, PILIR and COIDA and the Respondent should have obtained any relevant documentary evidence to use for cross-examination of the Applicant’s evidence and evidence by its own witnesses. The re-opening of the Applicant’s case for purposes of re-examination on the new documentary evidence is irregular and unprocedural as the Applicant should also be given an opportunity to lead examination-in-chief on the documentary evidence, but has already closed her case on 14 July 2025.
32. I also determined that there is no relevance for the document the Respondent applied to discover as new documentary evidence, since at that stage there was no dispute that the Applicant has indeed followed those two processes. The Respondent can still present its defence through evidence of its witnesses as the Applicant was cross-examined on those two processes by the Respondent as well. The application was therefore dismissed based on the relevance and prejudice it will cause to the Applicant if new documentary was to be discovered by the Respondent at that stage of the arbitration proceedings. The Respondent was then directed to proceed and present the evidence of its witnesses.

Thomas Manghavia Masuluke testified under oath as follows:

33. He is the Assistant Director: HR Conditions of Service for the Respondent and deals with employees’ benefits, including leave, pension benefits, housing allowances and long service awards.
34. He is aware of the Applicant’s application for incapacity leave on Page 12 of Bundle A for the period 03 June 2024 to 03 December 2024. The Applicant was hospitalized at Medi Clinic Tzaneen due to injury on duty on 08 November 2022 and was treated by Dr Thobejane.
35. The reason for the Applicant’s application for temporary incapacity leave is injury on duty. The correct process for injury on duty is that wellness unit must deal with it through COIDA, not the incapacity route.
36. Section 8 of PILIR Policy provides that “Injury on duty should strictly be dealt with in terms of the processes determined in the COIDA and should be dealt with through the PILIR process. The absence of these employees is to be covered by Leave for Occupational Injuries and Diseases provided for in the Leave Determination.” The Applicant submitted a leave application form on Page 12 of Bundle A and marked the type of leave as Special Leave not Occupational Injuries leave, so the leave form was an incorrect one.
37. After perusal of the Applicant’s application for incapacity leave, they realized that the attached medical report from the OT was incorrect as it was outdated for the leave application period from 03 June 2024 as it was dated November 2023. The application was returned to the Applicant to correct. This application was received at their offices on 02 July 2024. On 08 July 2024, they wrote a letter returning the application package indicating the errors found in the application and requested outstanding documents from the Applicant.
38. There were several errors in the initial application. The first one was that the last page of the report on Page 60 of Bundle R was dated 04 November 2023 when the application commenced on 03 June 2024. The second error is on Page 62 of Bundle R, the date of the report is 03 November 2023. The third error is on Page 63 of Bundle R, the date of injury is 08 November 2023 and on Page 73 of Bundle R, the doctor signed the document in November 2024 and when the application package reached their offices, it was not yet November 2024. The last reason was that the first application for incapacity leave was approved in 2023, with recommendation made by PHS that the Applicant must continue to visit the Physio Therapist as on Page 122 of Bundle R, and Page 127 of Bundle R, Item no.6 – conclusions and final recommendations.
39. The Applicant’s application package was received at the Circuit office on 23 July 2024, and it was returned to her as the medical report had discrepancies of dates. The Applicant submitted the correct application on 30 August 2024. His subordinates received emails from the Applicant that she has made appointments with the Physiotherapist, but there was no attachment of the report. He could not confirm how the Applicant returned the corrected application. The second email has a different date stating here is the OT report but no attachment, and later the OT report was sent to his subordinates by the Applicant by way of email.
40. They considered the hard copy email because it was a compete set of the application. They could not do anything with the email with OT report only. The complete application was then processed to PHS. PHS later declined the application due to another submission by the Applicant of COIDA application. They said it is a duplication of applications because the relevant office of wellness confirmed they received the application for COIDA and they were busy working on it. That made the application for incapacity leave to fall off.
41. On 15 October 2024, COIDA office gave a report from Department of Labour that the application was turned down, and that the Respondent may continue with the application for incapacity leave. The letter from COIDA, Department of Labour on Page 82 of Bundle R repudiating her claim is dated 15 October 2024. On 20 October 2024, they made a resubmission of the leave application in terms of PILIR.
42. On 22 October 2024, they resubmitted the applicant’s application and also acknowledged receipt. On 19 November 2024, they received an outcome that the application was declined and they also communicated the outcome to the Applicant. The letter was signed on 21 November 2024. The letter was sent to the Circuit Manager and he could not confirm when the letter reached the Applicant, but they sent the letter to the Circuit Manager immediately it was written on 21 November 2024.
43. Upon receipt of the letter, the Applicant then made an appeal which reached their offices on 14 December 2024. But as it was December holidays and vehicles were grounded for travelling, and PHS was closing down for Christmas, the appeal was attended in January 2025. The appeal was sent to PHS on 30 January 2025.
44. They received the outcome of appeal from PHS on 26 February 2025 and the response was still negative, as it was declined again. The Applicant was informed of the appeal outcome on 19 March 2025, indicating the intention of the Respondent to recover the monies as per clause in the incapacity policy that should the application fail or be declined, the Respondent must recover the money for the lost days (Clause 7.3.5.1 (g).
45. He would not have known if the Applicant would have returned to work to avoid leave without pay if she was informed of the outcome on time, earlier than 30 days from 30 August 2024. Only the doctors knew her health situation. The medical report did not attest if she was ready to return to work soon, as that would mean that she was not sick, but yet she left the children in the classroom for such a very long time.
46. They were not a position to respond to her application during that time as there was another application for COIDA and they were not in a position to advise her to return to work. According to the information they received, the Applicant returned to work on 04 December 2024, exactly after her leave has ended.
47. On 19 April 2023, he was invited by his colleague from Wellness to come with her to school to discuss the COIDA applications, as the Applicant also submitted a TIL application at that time Upon their arrival, they found the Applicant together with two union representatives and the Principal. During the investigations conducted by Wellness, he was requested to explain the position of the incapacity. He clearly explained to the two employees that the two applications cannot run parallel to each other covering same period and that only one application can be entertained.
48. The school was requesting a placement teacher and it was already April 2023. He advised the Applicant to choose which route to follow, either PILIR or COIDA. She was given dates to submit the documents and she committed to submit the COIDA forms within 3 days. They gave her the forms to complete and advised her of reports from medical practitioners. They told her if 3 days expired without submissions, they will continue with PILIR, as it was the first application. PILIR approved the application in 2023, for period Jan to June 2023 and later for July to December 2023 with some recommendations.
49. The school could not get a substitute teacher because her submissions were made late. Her submission was approved in May 2023 and it was expiring already end of June 2023.
50. The second application for July 2023 was returned for correction and she applied at the end of 2023. She was already not at work and documents must be submitted within 10 working days. Failure to submit the applications on time caused her salary to be frozen.
51. As the HR official, they are supporting staff of the Respondent and they are about the business of teaching and learning of the children at schools. They were worried that the children’s education was compromised as the school failed to get a replacement educator for the Applicant and the Applicant did not report for duty untilin the 3rd quarter on 22 July 2025, when the schools re-opened.

Kgaudi Khomotso Malete testified under oath as follows:

52. He is the Deputy Director, Safety, Health, Environment, Risk and Quality (SHRQ) of the Respondent. The directorate is in Employee Wellness Division stationed at Head Office in Polokwane. He is the Administration Manager for COIDA in Limpopo and Occupational Health and Safety, Risk and Quality relating to Occupational Health & Safety. His responsibility is to ensure that there is proper administration for COIDA in Iine with the prescribed regulations as well as, a result of injury on duty and compensation.
53. The correct procedure for applying for leave of absence for COIDA is that an employee must be injured during the execution of the employee’s duties, there must be a claim and the registrar must accept liability. All benefits will be applicable for injury on duty or occupational disease.
54. Compensation for COIDA is up to a maximum of 2 years. The employee must report an injury incident to the Supervisor who must complete a prescribed form for the employer to report the incident on WCL2. The form is given to the employee to produce at the medical facility or treating doctor. The treating doctor will complete first the medical report and give it to the employee to return the form with the medical report, payslips and ID copy to the employer and that would be the Principal of the school. The form will be sent to the Provincial office for registration.
55. He came across the Applicant’s application at the provincial offices after he received a call from Lerato of Polokwane Labour Centre and was referred by Chief Director Corporate Services, Mr Molope around late January 2024. The Applicant was complaining that her case was not treated fairly. He was then tasked to investigate the complaint and comply with the necessary. He called Lerato through her Supervisor, Ms Sathekge to establish the concern as a point of departure in the investigation.
56. Lerato gave him information of the Applicant and School name. He then secured an appointment with the Principal and went to school. He called the district, and spoke to Susan Mabunda to have an understanding if she was aware of the case. Susan indicated her knowledge of the case and he requested to meet at the school. He called several people to check what transpired with the case and requested investigations to be conducted. It was found that the case was not reported to the HOD and to the Principal. He required a report from the person in the district who conducted the investigation.
57. Upon perusal of the documents, as the Applicant alleged, he completed the form in the prescribed time, there was a need for condonation. He obtained the WCL2 completed previously, first medical report, ID copy and payslips to apply for condonation. There was a confusion if it was a case of injury on duty as there was a prior application approved for PILIR and there was a claim for injury on duty.
58. Because COIDA imposes an obligation to complete the forms and submit to the Department of Employment and Labour to either accept or decline liability, the Applicant had to give them the completed forms and the first medical report. He made an appointment with Ms Thalitha of Department of Employment and Labour at the Labour Centre, in Tzaneen to explain why the case was not reported a year later. Submission of all documents were made on 12 April 2024. Certain reports for doctors’ progress medical reports and WLC 5 were required for the November 2022 incident.
59. The Applicant must have completed COIDA leave and the doctor would have filled out the form accompanied by sick notes for injury and progress medical report for consultations on injury on duty. The claim will be adjudicated by the medical committee at the provincial level. If the claim is accepted, all benefits under COIDA are given to the employee for 12 months.
60. Page 12 of Bundle R is the PILIR application for long period for incapacity for period 03 June 2024 to 03 December 2024. The nature of the Applicant’s application for leave of absence on Page 12A Bundle R automatically disqualified the applicant’s claim under PILIR as it states special leave. PHS will automatically reject the application as it must be dealt with by COIDA because it is an injury on duty. The correct leave is for occupational injuries and diseases as it is for injury on duty.
61. If sick leave is for injury on duty, apply for COIDA not PILIR but not both as it is for the same reason. On 12 April 2024, when the previous COIDA application was under consideration, PILIR was halted until the COIDA application was considered. There is no way an employee can apply for a similar reason.

The Respondent closed its case.

ANALYSIS OF EVIDENCE AND ARGUMENTS

62. At the outset, I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.
63. The Applicant has referred this dispute claiming only that the Respondent has declined her application for temporary incapacity leave against the provisions of Clause 7.2.9 of PILIR policy outside of the 30 days, and has also started to deduct from her salary monies for 102 days lost as result of the decline of the application. It is common cause that the Applicant has not been at work since 03 June 2024 until 03 December 2024. The Applicant did dispute the reason for the decline as contained in the PHS report.
64. It is also common cause that the Applicant made the initial incomplete application as she submitted an outdated OT report dated November 2023. The application was returned to be corrected. The return of an incomplete application is of course in line with the provisions of Clause 7.3.3.1 (a) of PILIR policy.
65. The Applicant subsequently lodged a correct application on 30 August 2024. This application was considered by PHS and ultimately declined. There is undisputed evidence that the communication to inform the Applicant of the outcome of the application is dated 21 November 2024 and it was received by the Applicant after she returned to work on 04 December 2024.
66. The Applicant lodged an appeal against the PHS decision and it was still declined. According to PHS, the Applicant has not provided sufficient medical information to justify the period of absence. PHS also made recommendations that the Applicant continue with the physiotherapist and OT for rehabilitation as an outpatient.
67. The Respondent then advised the Applicant that it will begin to recover the 102 days that has been lost, as the Applicant was not reporting for duty for the period 03 June 2024 to 03 December 2024. It was the Applicant’s arguments that the Respondent has already started making deductions from her salary for April 2025, May 2025, June 2025 and July 2025, which was disputed by the Respondent. It was submitted that the Respondent has not yet started deducting as those deductions made are for the previous year unpaid leave. The Applicant’s payslips presented by the Respondent show deductions made for June 2024 unpaid salary spread over from April 2025 to July 2025. This is the period the Applicant submitted an incomplete TIL application which was returned. The deductions make sense as the Applicant was not reporting for duty and her application was not processed because it was incomplete.
68. It is also common cause that the Applicant lodged an application in terms of COIDA at the same time, and it is the Respondent’s argument that the Applicant deliberately delayed her PILIR application by following an incorrect process which resulted in the Respondent not processing her application due to the COIDA claim, because the two claims cannot run parallel to each other.
69. The Respondent also argued that the Applicant was informed that she needed to choose which route to take of the two, COIDA or PILIR, but despite that she decided to pursue both.
70. For long period of absence, Clause 7.3.5.1 (e) of the PILIR states: The Employer must within 30 working days after receipt of both the application form and the medical certificate referred to in paragraphs 7.1.4 and 7.1.5 approve or refuse temporary incapacity leave granted conditionally.
71. If interpreting this clause literally, which is what I have done, it is clear that the Respondent must comply with the 30 working day period as prescribed in the PILIR policy. This section is peremptory and not discretionary.
72. The crux of the question is whether the Respondent has complied with the 30 days prescribed period of the PILIR policy in processing the Applicant’s application. Certainly not, and the non-compliance is a common cause issue between the parties. The next question is whether the Respondent has been able to show justifiable reasons for such non-compliance. It is my view that the answer is also in the negative on this question.
73. The Respondent’s reasons for non-compliance is that the Applicant had deliberately followed PILIR and COIDA processes instead of choosing one process and that delayed PHS to process her PILIR application even if it was lodged earlier than the COIDA application. The Respondent relied on Clause 8 of PILIR which provides that injury on duty cases should be strictly dealt with in terms of the processes in the COIDA and should not be dealt with through the PILIR process, and that the absences of these employees are to be covered by Leave for occupational Injuries and Diseases provided for in the Leave Determination. The Respondent submitted that it had to wait for the COIDA application process done around July 2024 which was declined on 15 October 2024, and then resuscitated the PILIR application. The arguments by the Respondent that the Applicant conceded that she was informed in the meeting of 17 April 2023 with the union and Respondent’s representatives that she must choose one route and was aware that the two applications cannot run parallel to each other is not helpful to the Respondent’s defence to the non-compliance with PILIR provisions. There is no obligation in the PILIR policy for such a meeting.
74. The Respondent further argued that the Applicant was aware of the 30 days period and should have enquired as she has made previous applications before since November 2022, and based on her level of education she should have known about the consequences. I find this argument to be a shifting blame exercise on the part of the Respondent to the Applicant, on its responsibility to comply with the 30 days provided in PILIR. It is my considered view that whether the Applicant enquired within the 30 days or not becomes immaterial based on the Respondent’s position of not processing her PILIR application due to the pending COIDA application for the same injury on duty incident, and the fact that it was submitted that the Applicant applied for the incorrect leave type. If the Respondent submits that the Applicant’s application was irregular and invalid, it should have informed the Applicant from the onset in the 30 days period, not on 21 December 2023.
75. If the above was the reason for the Respondent not to process the Applicant’s application within 30 days, this should have been the reason to be given to the Applicant upon perusal and verification of the compliance matters as provided in Clause 8 of PILIR policy, not wait for 4 months and then decline the application for the reason that was already in existence in the 30 days of the application pending COIDA application. This unjustified delay has clearly prejudiced the Applicant with the long period of absence, which seemed to have been condoned by the Respondent with no feedback and not instructing her to report for duty, and the unfair decision to retrospectively deduct the monies from the Applicant’s salary for leave of absence, in the situation occasioned by the Respondent, not the Applicant.
76. In PSA and Another v PSCBC and Others (D751/09) [2013] ZALCD 3, Judge, Cele J, held that: in dealing with the failure of an Employer to render a decision regarding the approval or disapproval of TIL within 30 day period, commented as follows after a TIL application was declined by the Department. “This report sought to have a retrospective effect. The consequences of a retrospective effect are that it amounts to an unreasonable and arbitrary exercise of discretion with unfair consequences to an employee. Nowhere in clause 7.5 of Resolution 7 of 2000 (PSCBC), is there a suggestion that the employer may not grant further sick leave after the lapse of a 30 day period. On the contrary, as investigations shall be in accordance with Item 10 (1) of Schedule 8 of the Act, a further sick leave period may be granted to the employee.”
77. In Police and Prisons Civil Rights Union and another v Department of Correctional Services and another (2017) 38 ILJ 964 (LC), Judge Witcher J (24 – 26) held:
    “[24] I am aware of the judgment of my learned brother, Cele J, in Public Service Association of SA & another v PSCBC, Gouvea & others. In this he finds that where an application for temporary incapacity leave is declined outside the 30-day investigation period, any deduction from an employee’s salary for the period (outside the 30-day period) that he or she was awaiting a decision from the employer would offend the prohibition against retrospectivity. Cele J states that ‘the consequence of a retrospective effect is that it amounts to an unreasonable and arbitrary exercise of a discretion with unfair consequences to an employee’. This has been taken to mean that ‘employees cannot be subjected to leave without pay/monthly deductions from their salary (in order to recover salary paid, where an application for TIL/IHR is declined for a period they have been off work sick) or stoppage of salary unless the application is declined within 30 days or unless they have been given a date to return for work and have failed to do so.
    [25] The decision in Gouvea flowed from an analysis of clause 7.5.1(b) of PSCBC Resolution 7 of 2000, which is identical in operation to clause 7.3.5 (and 7.2.5) in PILIR. PILIR, a ministerial determination, indeed amplifies the earlier PSCBC Resolution 7 of 2000.
    [26] In my view, this interpretation of PILIR is not sustainable in the light of the fact that an employee applying for temporary incapacity leave has not been granted it yet. A late determination of an employee’s application for additional leave, as lamentable as this is, and a subsequent instruction to pay back money to which the employee was not entitled does not produce a decision that retrospectively deprives the employee of a right to the payment in question. An employee seeking additional sick leave in terms of PILIR has conditionally been paid a salary while his or her application for additional leave is considered. This consideration should be over within 30 days. However, if the period the employer takes to decide the application exceeds the 30 days set out in PILIR, I do not see how the conditionality of payments to an employee, subject to a medical assessment, hardens into an entitlement after the 30-day investigation period lapses. Nor, in the light of clause 7.2.2.2, 7.3.3.2 and note 4 of PILIR, should a reasonable employee applying for additional leave assume that, should a medical assessment go against him or her, even if delayed, he or she is entitled to be paid for his or her absence from work. It seems to me that, if the underlying medical condition which prompted an employee to seek additional sick leave, is assessed not to have warranted such leave, this fact must determine what happens to any payments he or she received while applying and not the employer’s delay in attending to the application.”
78. Subsequent to Judge Witcher’s Labour Court judgment, however, further case law has been handed down by the Labour Court, namely; Department of Roads and Transport and JC Robertson and PSCBC and others (PR40/14) [2017] ZALCPE in which Judge Lallie J, held that:
    [7] “The arbitrator’s interpretation of clause 7.5.1. (b) of Resolution 7/2000 which is based on the decision on PSA HC Gouvea (supra) cannot be faulted. When exercising the discretion to grant or refuse TIL, the applicant was enjoined by Resolution 7/2000 to take into account provisions 10 (1) of Schedule 8 to the Labour Relations Act 66 of 1995 as amended (the LRA). The interpretation the arbitrator gave to clause 7.5.1. (b) is consistent with the letter and spirit of the LRA. His decision is not based only on giving a peremptory meaning to the word “shall” in clause 7.5.1 (b) of Resolution 7/2000. He therefore conducted the correct enquiry in the correct manner and reached a reasonable decision”.
79. I am inclined to agree with the thinking of Judge Cele, which has now been supported by Judge Lallie, as the Applicant would be seriously prejudiced by the declining of her TIL Applications outside of the 30 day period. It is my considered view that even more so when you see the word “shall” in Resolution 7/2000 has been changed to “must” in the PILIR.
80. The Employer therefore “must” within 30 working days after receipt of both the application form and the medical certificate referred to in paragraphs 7.1.4 and 7.1.5 approve or refuse temporary incapacity leave granted conditionally. (Emphasis added).
81. It is therefore my finding based on the above, that the Applicant has been able to discharge her onus to prove on the balance of probability, that the Respondent has committed an unfair labour practice by declining the Applicant’s Application for TIL outside of the 30 day period as prescribed, for the period 03 June 2024 to 03 December 2024. Furthermore, the decision by the Respondent to deduct monies from the Applicant salary for 102 days lost with a retrospective effect is that it amounts to an unreasonable and arbitrary exercise of a discretion with unfair consequences to the Applicant.
82. I therefore make the following award.

AWARD

83. The Respondent, Department of Education -Limpopo, has committed an unfair labour practice by declining the Applicant’s application for TIL outside of the 30 day period as prescribed in the provisions PILIR for the period 01 September 2024 to 03 December 2024.
84. The Respondent, Department of Education – Limpopo, must stop with immediate effect from making any deductions from the Applicant’s salary, pension fund payout or monthly payments for the period 01 September 2024 to 03 December 2024.

GRACE MAFA-CHALI
ELRC PANELLIST