IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY

Case No: ELRC973-25/26WC

In the matter between:

SADTU obo JOY MINNAAR Applicant

And

WESTERN CAPE DEPARTMENT OF EDUCATION Respondent

BEFORE : COMMISSIONER TEBOGO MORAJANE

LAST HEARING DATE : 23 JULY 2026

LAST CLOSING ARGUMENT : 6 AUGUST 2026

AWARD DATE : 03 September 2026

AWARD

Introduction

1. This is an award in a matter that was referred by SADTU, acting on behalf of its member, Ms Joy Minnaar, who is the applicant in this matter. The respondent is the Western Cape Department of Education. The matter was set down virtually for arbitration, under the auspices of the Education Labour Relations Council (ELRC), on the following dates, 4 February 2026, 14-15 April 2026 and 22-23 July 2026.
2. The applicant was present and represented by Mr Juwa Dimande, the SADTU union official. The respondent was represented by Ms Liezle Diedericks, the Employee Relations officer from the Western Cape Department of Education.
3. The parties concluded the pre-arbitration minutes on 4 February 2026 and signed them on 14 April 2026. Evidence was therefore led on 14-15 April 2026 and 22-23 July 2026. The parties were granted an extended period for submission of closing arguments. The last closing arguments were filed with the ELRC on 6 August 2026.
4. The arbitration proceedings were digitally recorded, and I took typed and handwritten notes. The services of an interpreter were not required.

Issues to be decided

5. The applicant referred an unfair labour practice dispute, challenging the fairness of the respondent’s reasons in declining her temporary incapacity leave application and the procedure that the respondent followed in declining her temporary incapacity leave.
6. In relation to substantive fairness, the applicant challenged the respondent’s reasons in declining her temporary incapacity leave and the respondent’s alleged failure to apply its mind to the medical report and motivational letters that were before it.
7. In relation to procedural fairness, the applicant challenged the respondent’s alleged failure to act within the prescribed period, in handling her temporary incapacity leave application and the respondent’s failure to subject her to a different medical examination.
8. If I find that the respondent acted unfairly substantively and procedurally, then I must determine the recourse available. The applicant seeks a finding to the effect that her temporary incapacity leave, be granted retrospectively and that the amount of Thirty-Nine Thousand One Hundred and Sixty-One Rands Fourteen Cents (R39 161.14) that was deducted by the respondent, be paid back to her.
9. If, however, if find that the applicant failed to proof an unfair act on the part of the respondent, then that will be the end of my inquiry. The respondent seeks dismissal of the applicant’s case.

Background to the dispute

10. The applicant, at the time of the matter, was employed as a permanent Educator at the Bloekombos High School in the Western Cape. Her date of employment was January 2010. The applicant applied for the sick leave for the period of 23 January 2025 to 7 March 2025. The applicant’s leave days were exhausted. The applicant, thus applied for temporary incapacity leave for a period from 10 March 2025 to 27 June 2025. She was granted temporary incapacity leave for the period of 10 March 2025 to 23 May 2025. Her temporary incapacity leave for the period of 24 May to 27 June 2025 was not granted. Thus, the temporary incapacity leave that is in dispute is for the period from 24 May 2025 to 27 June 2025.
11. The letter from the respondent, dated 30 September 2025, which declined the applicant’s temporary incapacity leave was delivered to the Applicant on 3 October 2025. The Applicant lodged a grievance on 7 October 2025. SADTU also lodged another grievance on behalf of the Applicant on 24 November 2025. The Respondent responded to the grievance lodged by SADTU, on 12 December 2025, wherein the respondent, through the Service Benefits Department affirmed its decision to decline the applicant’s applied temporary incapacity leave.
12. As a result of the decline of the temporary incapacity leave application, the respondent was to deduct an amount of R39 161.14 from the applicant’s salary. The deduction was in terms of section 38 of the Public Service Act 103 of 1994, read together with section 34 of the Basic Conditions of Employment Act 75 of 1997 (BCEA), which provides for the deduction of 25% of the gross salary of an employee, for recovery of salary overpayments. Thus, an amount of R9 300.00 was deducted from the applicant’s salary, per month, over a period of four months, from November 2025 until February 2026 and the remaining amount of R1 161.14 was deducted at the end of March 2026.
13. The applicant, thus, referred an unfair labour practice dispute to the ELRC, on 19 November 2025. The dispute was conciliated on 5 December 2025, wherein a certificate of no resolution was issued. The Applicant then referred the matter to arbitration.

Survey of evidence and arguments
14. I have adopted the inquisitorial approach and conducted the proceedings with minimum legal formalities to determine the dispute fairly and quickly (see Impala Platinum Ltd v Jansen and others [2017] 4 BLLR 325 (LAC) at para 24).

15. I only summarised the evidence which I regarded to be relevant to the dispute and which I considered to reach my decision. Non reference of evidence tendered should not be regarded as non-consideration of such evidence. Both parties submitted the closing arguments, which I considered to reach a finding.

Documentary evidence submitted
16. The parties, submitted the following documentary evidence:
16.1. The applicant submitted Bundle A.
16.2. The respondent submitted Bundle R.
APPLICANTS’ EVIDENCE
Dr Jeffrey Christopher George, the applicant’s first witness testified under oath as follows:
17. Joy Minnaar was referred to him by Anthon Johnson, the applicant’s treating psychologist. He was the applicant’s psychiatrist. The applicant saw him on 19 March 2025 for the first time. He diagnosed her with major depressive disorder. He thus, booked her from 8 April 2025 to 27 June 2025, as the applicant had major depression and thus, the period would have been sufficient for her to recover, as patients normally take three to six months to recover. In addition, the period was warranted as the applicant’s mental state was such that she would not have been able to cope with her duties as a teacher. Thus, the period he booked the applicant for, was based on his own diagnostic accuracy. The applicant had on-going consultations with multi-modal treatment and consulted with multiple specialists.

18. The applicant was severely impaired but managed to get better without hospitalisation. Hence the applicant had a Global Assessment of Functioning (GAF) score of 40, which showed the extent to which depression affected her mental capacity and occupational functioning. Thus, the applicant was very sick. According to the Policy and Procedure on Incapacity Leave and Ill-Health Retirement (the PILIR policy), the Department was supposed to write to him or consult with other specialists before it took a decision to decline the temporary incapacity leave of the applicant.
19. Under cross-examination: he conceded that there was some improvement from the first diagnosis and agreed that the updated GAF score, which was supposed to show the progress of the applicant was never provided to the respondent, even in his next report. He further conceded that he did not provide the World Health Organisation Disability Assessment Schedule (WHODAS) score and that the WHODAS score provides an objective and reliable measurement than the GAF score. He testified that the reason for not including the WHODAS score was that it was not requested in the Annexures he completed and that it is normally used in cases where an employee is applying for disability. He further testified that the reason why the applicant was not hospitalised was because hospitalisation would not have meant that the applicant was going to get better.
20. Under re-examination, he testified that he would have provided the WHODAS score had the respondent asked for it.

The applicant, Joy Minnaar testified under oath as follows:

21. Her brother passed away in 2003. She had no time to grieve his death because she had to go back to teach the grade 12 learners. She suffered from depression and was put on medication by her treating psychologist, Anton Johnson, in 2008. In addition, in July 2023, she was in a motor vehicle accident, which resulted in her car being written off. Everything was too much for her as a result, she suffered from depression.
22. She had several consultations with her treating doctor, who booked her-off for being sick, from 20 January 2025 until 7 March 2025. Her sick leave days were exhausted and as such, Dr Anton Johnson completed the Annexure A form. Mr Khayalethu Rhola, the acting principal also supported her temporary incapacity leave application and thus motivated it. She also saw Dr George on 19 March 2025, who booked her off from 8 April 2025 to 27 June 2025. She thus applied for temporary incapacity leave and was under the impression that her leave was approved as the acting principal did not inform her that her leave application was not approved.
23. She signed her temporary incapacity leave form on 26 March 2026. She knew that the school needed a substitute teacher, thus, she knew that her temporary incapacity leave forms were submitted on time. She was surprised to see a deduction of R9 300.00 from her salary, that she did not consent to, which took place in November 2025
24. Under cross-examination, she testified that she understood that temporary incapacity leave was not a right and that it was granted to employees at the discretion of the employer, but that she was severely depressed and under a lot of stress mentally and physically. She further testified that the fact that a substitute teacher was appointed in her place, meant that her temporary incapacity leave was approved, although the principal did not tell her that it was approved.

Khayalethu Rhola, the applicant’s third witness testified under oath as follows:

25. The applicant applied for temporary incapacity leave. He signed the section on the temporary incapacity forms, which required his signature. His signature served as an acknowledgement of receipt of the forms and that the forms were ready to be submitted to the respondent. He was however not sure about the exact date on which the forms were submitted to the respondent. However, he was sure that the applicant’s temporary incapacity leave application form would have been submitted before the school closed on 28 March 2025. He then received an email on 3 October 2025, dated 30 September 2025. The email indicated that the applicant’s leave was partially approved.
26. Under cross-examination, he testified that he received the letter from the department in October 2025, when the applicant’s leave ended in June 2025. He further confirmed that he plays no role in the temporary incapacity leave process, except to complete the section that is to be completed by the principal and to submit the form. He further testified that he does not approve the temporary incapacity leave and only recommends.
27. Under re-examination, he testified that he would not support a temporary incapacity leave if it was abused. However, in the applicant’s case, it was her first time for the applicant to apply for temporary incapacity leave.

Mawethu Dyani, the applicant’s fourth witness, testified under oath as follows:

28. He is the person who uploaded the forms. He received an email on 26 March 2025, when the forms were returned, as the principal had not signed the last page. The principal had not signed the first time, when the forms were uploaded. The documents were then uploaded again on 16 April 2025 after the principal had signed.

THE RESPONDENT’S EVIDENCE
Faheema Isaacs, the respondent’s first witness testified under oath as follows:
29. She was the Alexander Forbes Health Risk Manager (HRM). The process followed when temporary incapacity leave applications are assessed is very rigorous and holistic. The assessment did not only look at the doctor’s diagnosis, but various aspects were looked at, as the assessment was of the functions and not the symptoms and diagnosis. Thus, the applicant’s inherent job requirements, the history of the sick leave and the doctors’ reports were looked at. The PILIR policy was used to assess the application. The final decision rested with the department and not with the doctors. Thus, the doctors’ reports were just one component of the assessment.

30. In relation to the assessment of the applicant’s temporary incapacity leave, she did the quality assurance of the application and her colleague Fatima, did the assessment. The quality assurance role looked at the clinical reasons which considered the assessor’s clinical reasoning and understanding whether the applied temporary incapacity leave was justified or not, based on PILIR policy and the medical disability guidelines, which provided the expected recovery time frames, functional ability, and work capacity of the applicant. She also considered the medical benchmark guideline, which is a benchmark of time frames with regards to the number of days a doctor booked an employee off work. The benchmark is used to determine if the temporary incapacity leave is exploited or not.
31. She confirmed that as the HRM, she sent the applicant an email, where she requested a list of medical evidence, as the assessment of the psychiatrist was subjective and the objective medical evidence was lacking. She further testified that the applicant’s application for temporary incapacity leave of 50 days was partially approved, because the HRM noticed she was referred from a psychologist to a psychiatrist which was an indication that she needed specialist management and more follow-up visits. In addition, Dr George stated that the applicant’s condition was not improving and that her GAF score stayed at 40, which was low. Thus, she failed to understand the correctness of the assessment as the report did not indicate what was done to further escalate the applicant’s health management. Thus, the report of Dr George was not sufficient. Proof of incapacity was required. The applicant’s temporary incapacity leave would have been warranted had Dr George saw the applicant every second week and had her medication been increased.
32. She agreed with DR George’s testimony that there is not always a need for hospital admission of patients but that progress reports from of the applicant were required. In addition, more consistent follow–up sessions with Dr George were also required, since Dr George had given the applicant a GAF score of 40 which is a concern as the WHODAS score was the required one to give an objective and realistic assessment.
33. Under cross examination, she testified that in her assessment of temporary incapacity leaves, she assessed functions in accordance with a specific diagnosis. Thus, she considers the inherent job requirements of a patient, an analysis of the actual job, the assessment of the diagnosis and the symptoms to determine if the patient would be able to meet the inherent requirements of the job. According to PILIR, the assessment by a psychiatrist was required. Leniency could be exercised, however, in the applicant’s case, the management of her treatment needed to be escalated. However, in the applicant’s case, there was a blanket period, as there were no further consultations after the 19 March 2025. A multi-disciplinary team intervention was required, which was not the case, in the applicant’s case. Furthermore, there was no evidence on ongoing significant incapacity or the need for further intensive management in the form of more frequent Furthermore, no progress reports were attached to the report.

Thabisa Mtula, the respondent’s second witness, testified under oath as follows:
34. She testified that she was the Assistant Director in the Service Benefits. The reason why the HRM looked at the the history of employees’ leave applications, was to check if there was abuse of leave. She further confirmed that the final decision to approve the leave is that of the department as the HRM only recommends either approval or non-approval of the leave, after assessment of the leave application forms and doctors reports. The assessments are required as the department must pay for both the educator and the substitute teacher. The turn around period for the assessment is 30 days if all the required documents were submitted.

35. Under cross-examination she testified that the applicant was at home for a month, before her temporary incapacity leave application form was submitted. The forms were returned as they were initially submitted without the signature of the principal. PILIR required the leave forms to be submitted within five working days. In addition, the employee has a responsibility to ensure that the principal submitted the leave application forms, considering the timeframes.
    Closing arguments
36. The applicant argued, in relation to substantive unfairness, that Dr George, the applicant’s psychiatrist, with 50 years of clinical experience, provided direct in person psychiatric clinical examination and a treatment plan, which was overruled by Ms Isaacs, from Alexander Forbes, a Health Risk Manager and a Registered Occupational Therapist who only had 19 years’ experience in medico legal assessments and health risk management. Furthermore, Ms Isaacs, provided a detached desktop review, to the effect that the applicant’s treating doctor did not provide sufficient evidence of ongoing significant incapacity and intensive management in the form of frequent consultations with the psychologist and psychiatrist and adjustment to medication. Such an assessment was clinically preposterous and legally flawed. Dr George offered a direct, in-person clinical examination, which was medically accurate than a generalised, rigid corporate textbook guideline. Thus, the reasons for not approving the applicant’s temporary incapacity leave, were substantively unfair.
37. The applicant argued, in relation to procedural unfairness, that the PILIR policy and the Personnel Administrative Measures (PAM) legally mandated the respondent to provide the applicant with a definitive written outcome within 30 working days from the date of receipt of the completed forms. The respondent had until 30 May 2025 to respond. Instead, the respondent waited 5 months and 17 days to respond, thus causing an egregious and flagrant delay. The applicant resumed her teaching responsibilities on 22 July 2025 and only received a delayed partial approval of incapacity leave on 3 October 2025. The respondent thus severely violated public service regulations and established an ironclad legitimate expectation that her entire leave application had been approved. In addition, the applicant had signed the PILIR Annexure B form, which was the applicant’s consent for the respondent to contact her treating doctor. Thus, the applicant argued that the conduct off the respondent, constituted an unfair labour practice.
38. The respondent argued that the Health Risk Manager had requested specific information and medical reports. Dr George, however, did not provide such information. The inevitable consequence was that the Health Risk manager had insufficient evidence to determine the applicant’s application. The applicant, therefore failed to prove the unfair labour practice.
    Analysis of the evidence
    Section 138 (7) of the LRA requires me to provide brief reasons for the award and therefore, any non-reference in my analysis, to any evidence tendered, does not imply that such evidence was not considered in making my decision
39. As alluded to above, the applicant challenged both the reasons for non-approval of her temporary incapacity leave (substantive unfairness) and the procedure that the respondent followed in not approving her temporary incapacity leave application (procedural unfairness).
40. In an unfair labour practice dispute, the onus that the act complained of, in this matter, declining of the short-term incapacity leave (temporary incapacity leave), was unfair substantively and procedurally, rested on the applicant, who had the duty to prove that the conduct of the respondent was unfair (see Department of Justice v CCMA & Others [2004] 4 BLLR 297 (LAC) 321). The applicant, thus had a duty to prove that the act complained of, fell within the unfair labour practice definition and that such conduct was unfair.
41. Section 186(2)(a) provides that an unfair labour practice is an act or omission that arises between the employer and the employee, involving an unfair conduct by the employer relating to the promotion, demotion, probation, or training of an employee or relating to the provision of benefits to an employee. In Apollo Tyres South Africa (Pty) Ltd v CCMA & Others [2013] 5 BLLR 434 (LAC) the Labour Appeal Court interpreted the term “benefits” to include the right or the entitlement to which the employee is entitled ex contractu or ex lege, as well as an advantage or privilege which has been granted to an employee in terms of a policy or a practice, subject to the employer’s discretion.
42. In terms of item H.5.3.1 of the PAM, incapacity leave is not an unlimited number of additional sick leave days at an educator’s disposal. Incapacity leave is additional sick leave granted conditionally at the employer’s discretion. Thus, considering the Apollo Tyres South Africa (Pty) Ltd v CCMA & Others judgment, temporary incapacity leave does fall within the definition of the unfair labour practices and can as such be determined in terms of section 186(2) of the LRA. Item H.5.3.1 of the PAM further provides that in determining the temporary incapacity leave, PAM must be read with the Policy and Procedure on Incapacity Leave for Ill Health Retirement (PILIR) determined by the Minister for Public Service and Administration and made applicable to educators by the Minister of Basic Education in Government Gazette
43. Thus, in analysing the provision of the temporary incapacity leave to the applicant as an educator, the Personnel Administrative Measures (PAM) of September 2022 and the Policy and Procedure on Incapacity Leave and Ill-Health Retirement (PILIR) of November 2005 will be referred to. PAM is a consolidation of the terms and conditions of employment of educators, which was determined by the Minister of Basic Education, as empowered by section 4 of the Employment of Educators Act 76 of 1998.
44. In the matter before me, as per paragraphs 5,5 and 7 above, the applicant challenged the respondent’s reasons for not approving her temporary incapacity leave application and considered the respondent having failed to apply its mind to the submitted medical reports. In addition, the applicant challenged the respondent’s failure to comply with the prescribed time-periods and the failure to subject her to a different medical examination.
45. It is common cause that the applicant was, on 3 October 2025, granted partial approval, for the period of 10 March to 23 May 2025. It is also common cause that as per the outcome of the grievance lodged by the applicant, the respondent on 12 December 2025, issued a final response to the incapacity leave application and reiterated the partial approval of 50 working days for the period pf 10 March 2025 to 23 May 2025. The respondent then declined the temporary incapacity leave applied for the period of 24 May 2025 to 27 June 2025, which amounted to 24 working days. The respondent’s reasons for the decline were, inter alia, the extended period of 24 days was not supported by sufficient objective evidence of ongoing severe incapacity and that indicators such as the frequent psychiatric consultations and multi-disciplinary progress reports were absent, thus making the assessment and the period applied for to lack clinical justification. Thus, the non-approval of the extended period of 24 May to 27 June 2025, resulted with the said leave being converted into leave without pay and the resultant deduction of an amount of R39 161.14 from the applicant’s salary over a period of 4 months.

Was the respondent’s act of non-approving the incapacity leave, substantively unfair?

46. In relation to substantive fairness, the applicant’s case, as alluded to above, was that the conclusion reached by the Health Risk Manager, namely, that there was insufficient clinical evidence to warrant the temporary incapacity leave, was medically flawed, as such an assessment was made by way of desktop review without physical examination or an interview with the applicant. In addition, that such an assessment was made by a Health Risk Manager who was a Registered Occupational Therapist with only 19 years’ experience in medico legal assessments and health risk management, as opposed to an experienced psychiatrist with 50 years of experience. Thus, the assessment made was medically flawed.
47. The respondent’s case was that the assessment, which was made by a team, was very rigorous and holistic. The assessment did not only look at the doctor’s diagnosis, but also considered various aspects, since the assessment was of the functions and not the symptoms and diagnosis. Thus, the doctors’ reports were just one component of the assessment. In addition, the application for temporary incapacity leave was partially approved with the letter dated 30 September 2025, which requested further objective medical evidence, which the treating psychiatrist failed to supply. The respondent’s case further was that, since the applicant’s failure to submit further objective medical evidence, the application was declined for lack of clinical justification.
48. The question to consider is whether the respondent, as alleged, failed to take the applicant’s medical evidence of a specialist and experienced psychiatrist into account and whether the conclusion reached by the Health Risk Manager that the extended period of 24 days lacked clinical justification was substantially unfair or not. It must be noted that in terms of item 7.1.1 of the PILIR and Chapter H item 5.3.1 incapacity leave is not a right to additional unlimited number of sick leave days that are at the disposal of an employee, instead additional leave days are granted at the discretion of the employer.
49. In the matter before me, the applicant was granted conditional approval with the first 50 working days of leave for the period of 10 March 2025 to 23 May 2025 being approved. The respondent then, through the Health Risk Manager, communicated additional medical evidence that was required. The letter addressed to the applicant, dated 30 September 2025, pointed out elements of objective medical proof, that the applicant was required to submit, to warrant additional 24 days, for the period of 24 May 2025 to 27 June 2025. The respondent’s case was that the assessment of incapacity leave was a holistic, multidisciplinary assessment, which did not only consider the medical diagnosis. The applicant’s witness, Dr George, conceded to the non-inclusion of certain medical evidence, such as additional consultations post the 19 March 2025, the prognosis of follow up, the improvements that the applicant made, the medication that was prescribed to the applicant etcetera. In addition, Dr George conceded to not using the WHODAS score and that it is more objective and reliable than the GAF score, which he used. The respondent’s case further was that the diagnosis of Dr George was not challenged, but that additional evidence was required to justify the additional 24 days. In terms of the PILIR (item 7.1.5) and PAM (item H.5.3.3) an employee is required to submit outlined medical evidence to prove medical incapacity. Thus, the requirement of additional medical evidence was in line with the PILIR and PAM and thus not unfair. I therefore find that, the respondent applied its mind to the medical reports of the applicant and acted fairly in allowing the applicant, an opportunity to resubmit stated aspects of objective medical proof. The non-submission of additional objective medical proof is what resulted with a conclusion that the additional 24 days, for the period of 24 May 2025 to 27 June 2025, that were applied for, lacked clinical justification. Thus, the applicant failed to prove that the respondent, failed to apply its mind to the submitted medical reports and that it thus acted substantively unfair.
    Was the respondent’s act of non-approving the incapacity leave, procedurally unfair?
50. In relation to procedural unfairness, it must be noted that the dispute pertaining to an alleged unlawful deduction and breach of grievance procedures are outside the dispute before me, namely the section 186(2) unfair labour practice dispute. Thus, the award focuses only on the section 186(2) dispute. In relation to procedural unfairness, the applicant challenged the respondent’s noncompliance with the 30 days period for the assessment of the incapacity leave application and the respondent’s failure to subject the applicant to undergo further medical examination. In relation to the 30 days period, it is common cause that the respondent responded to the applicant with a letter dated 30 September 2025. The applicant’s case was that the said letter was only delivered on 3 October 2025, which made the assessment to be 5 months and 17 days late and thus procedurally unfair.
51. In terms of clause H5.3.8. of the PAM, the respondent is required to respond to the temporary incapcity leave application within 5 working days of receipt of such an application, by conditionally granting the employee a maximum of 30 consecutive working days temporary incapcity leave, with full pay, subject to the outcome of the investigation into the nature and extent of the employee’s illness. Additionally, clause H5.3.8.2 requires the employer or Head of Department (HoD) to refer the application together with the medical supporting documents, to the Health Risk Manager for assessment and advice. In terms of clause H5.3.10 of the PAM, the employer (HoD) must within 30 working days after the receipt of both the application and medical certificates, approve or refuse the temporary incapcity leave granted conditionally.
52. In the matter before me, it is not in dispute that the respondent did not assess the applicant’s incapacity leave within 30 working days after receipt of the application and supporting documents, which, as per the applicant’s case, were submitted on 16 April 2025. It is also not in dispute that the applicant’s temporary incapacity leave forms were submitted outside the prescribed period of within 5 working days from the first day of absence (clause H5.3.6 of PAM). The applicant was on leave from 10 March 2025. The submission of the complete signed form on 16 April 2025 meant that the applicant’s form was submitted outside the prescribed time-period. In terms of clause 5.3.7.1 of PAM, the late submission of the temporary incapacity leave application, may result in the leave being approved as an unpaid leave. However, as per the testimony of Ms Issacs, focus in the assessment was not on the time periods (form) but was on the clinical justification for the extended period (substance). Thus, after partial granting of the first 50 working days, the application was allowed time to submit further objective medical proof to justify additional 24 days.
53. The question before me then is whether the noncompliance with the prescribed 30 days for assessment of the incapacity leave amounts to an unfair conduct on the part of the employer. In Public Service Association and Another v PSCBC Gouvea and Others [2013] ZALCD 3 para 20 Cele J held that the deductions that were made from the employee’s salary where the employer assessed the temporary incapacity leave outside the prescribed 30 days investigative period, offended prohibition against retrospectivity, thus the court held that “the consequence of retrospective effect is that it amounts to an unreasonable and arbitrary exercise of a discretion with unfair consequences to an employee”. The implication of the Public Service Association and Another v PSCBC Gouvea and Others judgment is that an employee whose temporary incapacity leave was declined outside the prescribed investigative period of 30 days, cannot be subjected to leave without pay or deduction from their salary. However in 2016 the labour Court in POPCRU and Another v Department of Correctional Service and Another [2016] ZALCD 25 para 26 Whitcher J, correctly found the judgment in PSCBC Gouvea and Others flawed as an employee applying for temporary incapacity leave has not been granted the leave yet and thus a late determination of an employee’s temporary incapacity leave application does not produce a decision that retrospectively deprived the employee of a right to a payment in question, when such an employee has conditionally been paid a salary while their application is considered.
54. Thus, in light of the POPCRU and Another v Department of Correctional Service and Another, and the discretionary nature of the temporary incapacity leave, the respondent’s failure to make the decision to approve or not approve within the prescribed timeframe, cannot make what was a conditional leave, awaiting the employer’s exercise of a discretion, upon finalisation of the investigation, to morph into a tacitly granted right, which is granted by the conduct of an investigation that exceeded 30 days. Thus, the delay in finalising the assessment of the applicant’s temporary incapacity leave application, which resulted from a number of factors, such as the delayed submission of the applicant’s form and the delay from the respondent’s side, cannot automatically make the applicant’s leave to transform from a non-approved leave to an approved leave. The respondent in assessing the incapacity leave placed emphasis on substance than form.
55. Thus, as per the POPCRU case the delay in assessing the temporary incapacity leave does not create a right to a temporary incapacity leave for an employee. Thus, the employee can seek recourse in compelling an employer who has excessively delayed in assessing an incapacity leave, such as in a form of interdict. Thus, a delay of 5 months 17 days, which resulted in the partial grant of 50 working days and a request for additional objective evidence to reconsider the remaining 24 days, cannot amount to an unfair labour act, warranting transforming a conditional leave into an approved leave. I therefore do not find the respondent’s act to be procedurally unfair, warranting the conversion of a non-approved leave to an approved leave, despite the outcome of the Health Risk Manager’s assessment.
56. In addition, the respondent’s failure to subject the applicant to another examination, was alleged to be procedurally unfair. In terms of clause H5.3.9 of PAM the employer may subject the employee to one or more medical examination by medical practitioners of the employer. The use of the word “may” imply that subjecting an employee to medical examination is not obligatory. Thus, a decision not to subject an employee to an assessment of the employer’s medical examiners, does not make the employer procedurally unfair.
57. Thus, I find that the applicant failed to prove an unfair act/ conduct on the part of the respondent. As alluded to above, the duty to prove unfairness rested with the applicant. If the applicant failed to prove unfairness, then that would be the end of my inquiry.

Award
58. I find that the applicant, Joy Minnaar, failed to prove an unfair conduct, on the part of the respondent, the Western Cape Department of Education, in the decision it took, not to approve the temporary incapacity leave, that the applicant applied for.

The Applicant’s case is thus, dismissed.

ELRC Arbitrator/ Panelist