Panelist: Clint Enslin
Case No.: ELRC752-25/26FS
Date of Award: 06 May 2026

In the ARBITRATION between:

SADTU obo Mampoi Mohale
(Union / Applicant)

and

Department of Higher Education and Training

(Respondent)

Applicant’s representative: Ms Puleng Mafokeng
Applicant’s address:

Telephone:
Telefax:
Email

Respondent’s representative: Mr Wonga Ndyalivane
Respondent’s address:


Telephone:
Telefax:
Email

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 33A(4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 69 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held on-line via Teams, on 27 February as well as 9 and 10 April 2026. The Applicant, Ms Mampoi Maohale, through her Union SADTU, referred a dispute relating to the alleged breach of a Collective Agreement to the ELRC.
2. The Applicant was represented by Ms Puleng Mofokeng, an official from SADTU. The Respondent, Department of Higher Education and Training, was represented by Mr Wonga Ndyalivane, an Assistant Director: Labour Relations of the Respondent.

ISSUE TO BE DECIDED

3. I am required to determine if the Respondent is in breach of the Collective Agreement and if so, determine the appropriate relief.

BACKGROUND TO THE ISSUES

4. The dispute concerns the alleged failure of the Respondent to approve the Applicant’s short terms temporary incapacity leave (“TIL”) applications.
5. The parties drafted and signed a pre-arbitration minutes to which certain amendments were made with the parties’ knowledge and agreement.
6. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.

6.1 The Applicant has been employed, by the Respondent, as a PL1 lecturer at Maluti TVET College since 9 February 2009.

6.2 She applied for TIL, subsequent to her sick leave being exhausted, for the following periods:

6.2.2 7 – 10 March 2024 (4 days). This application was received by the Respondent’s HR on 8 April 2024.

6.2.2 15 -17 May 2024 (3 day). This application was received by the Respondent’s HR on 23 May 2024.

6.2.3 14 – 16 August 2024 (3 days). This application was received by the Respondent’s HR on 20 August 2024.

6.2.4 24 – 25 October 2024 (2 days). This application was received by the Respondent’s HR on 29 October 2024.

6.3 The Applicant had exhausted her sick leave for the 2022 to 2024 cycle at the time of applying for TIL.

6.4 The Applicant received response/s, dated 12 March 2025, to all the above TIL applications. All the applications were declined.

6.5 The Applicant lodged a grievance for each TIL application.

6.6 On 17 August 2025 the Respondent issued a grievance outcome advising the Applicant that her grievance was declined based on the recommendations by the Health Risk Manager assessment.

6.7 The Respondent has not instituted “leave without pay” towards the Applicant to recover the money paid when Applicant was not at work.

7. The Applicant submitted 2 bundles, which I marked “A” and “A1” respectively. The Respondent submitted 1 bundle, which I marked “R”. Parties agreed that the documents contained in the bundles were what they purported to be.
8. The matter was digitally recorded.
9. Both parties submitted written closing arguments, which were received on 17 April 2026.

SURVEY OF EVIDENCE AND ARGUMENT

10. This award constitutes a brief summary of evidence, argument and my reasons for the award issued in
    terms of Section 138 (7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the
    evidence and arguments heard and considered in deciding this matter.

Applicant’s Case
Ms Mampoi Mohale

11. The Applicant, Ms Mampoi Mohale, testified that she had applied for TIL in 2024. She understood the TIL process. She had applied in 2024, however, she only received a response in 2025. Page 11 of R was a consent form for further medical information. It was part of the TIL application form. It meant that she had given permission for the Respondent to contact her doctor for further medical information. She had completed such a consent form for all her TIL applications. Page A of bundle A was a letter from the Respondent confirming that her grievance, relating to her TIL claim for 8 to 10 March 2024 remained declined due to insufficient evidence regarding the reasons for the admission to hospital on 7 March 2024, treatment received or the degree of her functional impairment.
12. In terms of her application for the period of 15 to 17 May 2024 she was she was given various reasons for it being declined, which, inter alia, included that she normally takes days off between the 14th and 15th and also that there was not enough evidence, despite her having submitted a medical certificate for the period. A pages C and D was the initial response, dated 12 March 2025, in relation to the application for the period of 15 to 17 March 2024. As part of the reasons given for declining the application, it stated that “While we acknowledge the information you have provided, no additional information was provided by the attending doctor and in view of the concerns regarding your sick leave usage….” She had submitted the medical certificates and supporting documents (motivational letter on her medical information by the doctors.) with the grievances. Page B of A was the response to her grievance for the period of 15 to 17 May 2024. It also confirmed that there remained insufficient evidence as to the nature and degree of her pain symptomology at the time, the treatment she received and evidence of the degree to which she was functionally impaired.
13. Collective Agreement 1 of 2013 at 6.3 (see page 87 of R) stated “The employer may require the lecturer to obtain a second opinion before approval for additional sick leave. Expenditure in this regard will be met from the employer’s budget.” She was never requested to get a second opinion. She had only been requested to go back to the doctor to get a supporting letter with more information, which she had done and which was attached to the grievance. She had also never been asked for further information for normal sick leave. The Campus Manager was aware of her medical conditions. As they were aware of her conditions, including asthma, diabetes, high blood pressure and a hip issue, they could have sent someone check before just declining the TIL. Her working conditions were altered due to the Respondent being aware of her medical conditions. They had removed her from the invigilation timetable for final exams and her periods were adjusted to have short breaks in between so that she could rest. Her groups of learners were also larger so that she could have less periods in day.
14. Her medical issues were stated on the medical certificates. Some certificates were from doctors and some from specialists. Page 63 of R was her grievance for her TIL application for the period of 7 to 8 March 2024. Page 64 of R was the medical notes from the hospital for same. She had been hospitalised from 7 to 10 March 2024. On 10 March 2024 she was released from hospital. She was, however, still not well and she went to see Dr Singh on 11 March 2024. She was then booked off from 11 up to and including 13 March 2024. Page 65 of R was the extra information she had attached to her grievance for this claim. Pages 74 and 75 of R was the report from the Respondent’s contractor (“SOMA”) which stated it was for the period of 8 to 10 March 2024. It should have stated that it was for 7 to 8 March 2024 as 9 and 10 March 2024 were a Saturday and Sunday. The said report confirmed that they had received additional information. Despite this, the grievance outcome was that the TIL application remained declined.
15. A1 was the Policy and Procedure on the Incapacity Leave and Ill-Health Retirement (“PILIR”). It governed short term incapacity. Clause 7.2.5 read: “guidelines for incapacity assessment at Annexure G to enhance objective, equitable and consistent advice and decision-making. The assessment by the health Risk Manager shall include, among others-

7.2.5.1 ………

7.2.5.2 if the employee has consented thereto, contact with the treating medical practitioner to verify information where necessary; and

7.2.5.3 …..”

16. A1 clause 7.2.7 read: “The Health Risk Manager may request further information before concluding its advice to the Employer.” The Health Risk Manager had not requested same in her matters. R page 71 was her grievance submitted on 28 March 2025 for the claim of 15 to 17 May 2024. Page 67 of R was the additional medical information from doctor Singh said period. Pages 76 and 77 of R was the SOMA report for this period. The outcome was that there was still insufficient evidence. Page 83 of R was the grievance outcome for the same period with the same outcome as the SOMA report. Page 69 of R was the grievance for the claim of 14 to 16 August 2024, which was submitted on 23 April 2025. Page 45 of R was a medical certificate from doctor Pieterse which was submitted with her application. Page 70 of R was additional medical information submitted with her grievance for this claim. Pages 78 and 79 of R was the SOMA report for this claim. It confirmed that the application remained declined due to insufficient medical information. Page 84 of R was the grievance outcome for this claim where the outcome was the same as on the SOMA report.
17. Page 66 of R was the grievance form for the claim of 24 to 25 October 2024. Page 56 of R was the medical certificate for this claim and page 67 of R was the additional information, from doctor Singh, submitted with the grievance. Page 68 of R was a medical note written by the specialist explaining the situation and which showed that the Respondent was aware of her condition. Page 80 and 81 of R was the SOMA report for this claim. The grievance outcome was that the decision not to approve the TIL remained unchanged. In essence the reason for declining all the TIL applications was that the information was insufficient, yet no one asked for more information, even after additional information had been supplied.
18. As per page 8 of R, she understood that the TIL process was the route to take when normal leave was exhausted and there were reasons for the absence. She confirmed that TIL was not an extension of sick leave and that it could be approved or declined based on the evidence provided. It was the responsibility of the person applying for the TIL to supply evidence. Pages 8, 9, 10 and 11 were TIL application for the period of 7 and 8 March 2024, which she had signed on 18 March 2024. She agreed that although it gave permission for the Health Risk Manager to contact the doctor, it depended on their assessment whether or not they would in fact do so. Clause 7.18 of A1 read as follows: “An employee must submit an application form for temporary incapacity leave personally or through a relative, fellow employee or friend within 5 working days after the first day of absence.” The form was signed and submitted on 18 March 2024, which was outside the 5 day period, however, she had been in hospital and had informed her supervisor of same. On 10 March 2024 she was still sick and was booked off until 13 March 2024. There was no one that she could send to fetch the form. She, however agreed that she had not complied with clause 7.1.8.
19. Pages 18 and 19 of R was the TIL application form for the period of 15 to 17 May 2024, which she had signed and submitted on 23 May 2024. She agreed that here she had also not complied with clause 7.1.8, however, she had been absent due to sickness. She could not get to work and by the by the time she got back to work there was no electricity at their campus. She had to go to another campus to get the form. She was also still sick. The March and May applications were two different applications. March was due to her hospitalisation May was due to her knee pain. Pages 35 and 36 of R was her TIL application for the period of 14 August to 16 August 2024. Pages 46 and 47 was her TIL application for the period of 24 October to 25 October 2024. Page 56 of R was the medical certificate for the period of 24 and 25 October 2024.
20. A1 clause 7.1.5 read as follows: “For an employee’s application for temporary incapacity leave to be considered the –

7.1.5.1 employee must submit sufficient proof that s/he is too ill/injured to perform his/her work
7.1.5.2 ……….

7.1.5.3 employee is in accordance with item 10(1) of Schedule 8 to the LRA afforded the opportunity to submit together with his/her application form –
(a) any medical evidence related to the medical condition of the employee such as medical reports from a specialist, blood tests results, x-ray results, or scan results, obtained at the employee’s expense; and

(b) any additional written motivation supporting his/her application.

21. Page 46 of R, at point 5, it confirmed that she (employee) needed to attach all that she thought would help with the case. In terms of the first period she had claimed for she had not submitted any x-ray, scan or blood test results, per the policy, as they were not in her possession. She agreed that it was the employee’s responsibility to prove. She believed that the Health Risk Manager should have indicated what was required/short instead of just stating that the information was insufficient. There was no motivation letter for the period of her hospitalisation from 7 to 10 March 2024. As such, for this claim, there was only the application form and initial medical certificate. She understood clause 7.2.5.2 of A1 to confirm that she (employee) should contact the medical practitioner for further information rather than the Health Risk Manager.
22. Clause 7.1.7 of A1 read “If overcome by a sudden incapacity, the employee must personally notify his/her supervisor/manager immediately. A verbal message to the supervisor/manager by a relative, fellow employee or friend is only acceptable if the nature and/or extent of the incapacity prevents the employee to inform the supervisor/manager personally.” She had complied with same. Clause 7.1.9 and 7.1.9.1 confirmed that if an employee failed to submit his/her application within 5 working days after the first day of absence, the employee’s supervisor/manager must immediately notify the employee that if such application is not received within 2 working days, the sick leave period will be deemed to be leave without pay. The Respondent had not done so. She believed that, in view of clause 7.2.7 of A1, it was both the employee as well as the Health Risk Manager’s responsibility to obtain medical information.

Respondent’s Case
Dr Suzette Bossert

23. Dr Suzette Bossert, medical consultant for SOMA (ie. Health Risk Manager), testified that she held MBCHB degree (General Practitioner) and had 13 years’ experience prior to joining SOMA in 2012 as a medical consultant. Her duties at SOMA consisted of providing medical input and oversight on reports for the department. Specifically, health risk recommendations on TIL. Since 2012 she had dealt with many TIL applications. The application on page 8 of R belonged to the Applicant. SOMA had dealt with a number of applications for her. As she recalled, the initial applications as well as the grievances were dealt with by herself. There was also an Occupational Therapist that dealt with them with her. Page 8 of R was an application for TIL, by the Applicant, for the period of 7 to 10 March 2024. SOMA had received same on 22 May 2024. Page 18 of R was also an application for TIL, by the Applicant, for the period of 15 to 17 May 2024. Page 35 of R was the same, but for the period of 14 to 16 August 2024. Page 46 of R was also the same, but for the period of 24 to 25 October 2024. SOMA had recommended that all the applications be declined.
24. The basis for the recommendations to decline the TIL applications were as follows:

24.1 Application of 7 to 10 March 2024 – The basis of the application was an admission to hospital under the care of a physician. A medical certificate was provided (page 17 of R) as well as the Applicant’s leave record for the previous two leave cycles. It was assessed by the Occupational Therapist and herself. There were concerns with the previous sick pattern and no additional medical evidence from the treating physician, such as diagnosis, hospitalization dates, treatment provided, functional limitations, etc.

24.2 Application of 15 to 17 May 2024 – The basis of the application was knee pain. A medical certificate was provided (page 27 of R) and the leave records were also considered. They also considered the information given by the Applicant in part A of the application. They had recommended that the application be declined as there were concerns with the Applicant’s sick leave usage and also that there was insufficient medical information regarding the condition and functional limitations per the job. They expected comprehensive information, which would include detailed clinical information such as gate, assisted devices, examination if the knee itself where swelling, tenderness, deformity, range of movement and functional limitations, extent of pain and impact on function etc. would be dealt with. Also investigation information such as x-ray, blood test and/or scan results and treatment required.

24.3 Application of 14 to 16 August 2024 – The basis of the application was bronchitis. A medical certificate was provided (page 45 of R) and leave records. They also considered the information provided in part A of the application. They had concerns about the Applicant’s sick leave usage. There was no additional information at that stage as per the information examples given in 24.2 above (adapted for the particular issue).

24.4 Application of 24 to 25 October 2024 – The basis of the application was acute back pain. A medical certificate was provided and leave records. They also considered the information provided in part A of the application. They had concerns about the Applicant’s sick leave usage and the limited medical information supplied.

25. The first grievance submitted by the Applicant (page 63 of R) was for the claim of hospitalization from 7 to 10 March 2024, however, the extra certificate on the right hand side of the page containing the initial medical certificate, was for 11 to 13 March 2024. This was submitted with the grievance but was not for the period of the application. A report from the Orthopedic Surgeon and GP were provided. The outcome of the grievance was that it remained declined after considering extra information supplied as well as the leave records. There was still insufficient information about the hospitalization of 7 to 10 March 2024.
26. The second grievance submitted by the Applicant (page 66 of R) was for the claim of 15 to 17 May 2024. The report on page 67 of R had also been submitted with the previous application for TIL (Hospitalization). They had considered the 2 reports, the information in the grievance and the information in the initial application. The recommendation was that it be declined as there was still insufficient evidence of the nature and degree of the pain and the symptoms at the time, what treatment was required at the time and degree of functional impairment at the time.
27. The third grievance submitted by the Applicant (page 69 of R) was for the claim of 14 to 16 August 2024. Page 70 was a report by the GP. The recommendation was that it be declined. The reasons for same were that the additional information suggested absence based on a minor illness (bronchitis) which was routinely managed. They noted that TIL was an employee privilege granted at the discretion of the HOD and was not an extension of or addition to normal sick leave. They also noted concerns about the Applicant’s management of sick leave per her initial application, which mitigated against a favorable finding in this application.
28. The fourth grievance submitted by the Applicant (page 71 of R) was for the claim of 24 to 25 October 2024. Pages 72 and 73 of R was the same report submitted with the other grievances. The recommendation was that it be declined. The reasons for same were that after noting the additional information (Orthopedic Surgeon Report and GP Report) there was still insufficient information on the pain and symptoms at the time, treatment required and degree of functional impairment at the time.
29. All the SOMA reports stated that there was insufficient medical evidence. The information relating to chronic issues was always present, however, the Applicant continued to work, despite same. These were short absences and therefore information on presentation during the specific periods of absence, which may include a history of the pain worsening or different symptoms, a clinical examination and its findings, treatment required, oral pain relief required, referral to a physiotherapist, specialist management investigation, radiology reports, etc. were required.
30. The employee needed to supply the medical reports/information for SOMA. Clause 1.17 of A1 read as follows: “sufficient proof means enough accurate information from acceptable medical sources to allow the Employer to make an independent medical assessment regarding the nature and severity of the employee’s medical condition.” A Health Risk Manager would contact an employee’s doctor for medical information to verify or clarify information already given and not to obtain information for the assessment. Same was not required in the current matters as there was no indication that clarification or verification was needed. It was the Employer’s discretion to approve or decline TIL applications. (See clause 7.2.9 of A1.) The Health Risk Manager’s role was to do an assessment based the medical information provided, leave records and other information provided and then make a recommendation to the Employer.
31. When TIL applications came in to SOMA, they were classified as compliant or non-compliant according to the timeframe set in PILIR. If the application was made outside the allowable timeframe, it could lead to the health risk assessment being delayed as compliant applications were given preference. According to her information, the Applicant’s applications were non-compliant. In determining the said compliance or non-compliance both the date of submission to the employer and the date the application was received by the Health Risk Manager were important. They were not always aware of when the application was handed to the employer. They often only had the date it was signed. She agreed that all the applications in question were only submitted to SOMA a month or more after they had been submitted to the employer and that these dates would be considered in determining compliance or non-compliance. It appeared that the employer had failed to comply with timeframes for submission from its side.
32. She agreed that the Health Risk Manager had also not complied with the timeframes in clause 7.2.3 of A1. This was due to non-compliant matters being delayed for compliant cases to be prioritized. Same was determined using the first day if illness and the date SOMA received the application. The first 3 lines of clause 7.2.9 of A1 read as follows: “The employer must within 30 working days after the receipt of both the application form and medical certificate referred to in paragraph 7.1.4 and 7.1.5, approve or refuse temporary incapacity leave granted conditionally……..” She could not say if the employer was in a position to decline the applications given that they had not complied with the timeframes. To her understanding the employer had not complied with the timeframes in clause 7.2.9 of A1.
33. The Health Risk manager would typically consider the following before recommending approval or otherwise of TIL applications:
    33.1 PILIR provisions;
    33.2 Manner in which sick leave was exhausted;
    33.3 Sick leave records;
    33.4 Medical certificates accompanying the sick leave records;
    33.5 Additional medical information provided;
    33.6 Any written motivation from the employee or his/her supervisor or manager.
34. The assessment was done by a disability claims consultant (mostly an Occupational Therapist) and a medical consultant (GP). After all was considered, a report was done with recommendation and opinion which went to the employer. The outcome is determined by the HOD. They did not go into details as to wheat medical information was lacking, however, appendix 1 of the application form was used to support the medical certificate. It had headings that would guide as to what would be useful for the assessment. Although it completion would not always guarantee that a finding would not be made that there was insufficient medical information, it was a guide in this regard. A full health risk assessment, as per clause 7.2.4.5 of A1, was not considered appropriate in the Applicant’s case as it was brief isolated issues of various kinds and the information supplied was insufficient to determine if TIL was warranted. Full health risk assessments were generally not done where insufficient information was supplied and where there were various short term issues at play. It was also not performed to obtain information for an assessment.
35. The advice referred to in clause 7.2.4.4 of A1 differed from determining if the applicant qualified for TIL. It referred to advice on how the condition could be managed and it was not always possible for them to do so. This was also different from determining if an applicant qualified for TIL. A Health Risk Manager was not tasked with obtaining information. The reports did give some indication/guidance as to what was required. At the time of the assessments they only had medical certificates pertaining to the TIL applications. The medical certificates for the Applicant’s normal sick leave were not attached. She could not say if same would have been sufficient as proof of reasons for normal sick leave use as the contents of the certificates would be important. She could not say if an employer would have complied with its requirements if appendix 1 was not attached. The employer was directed to consider the advice of the Health Risk Manager in approving or declining TIL (see clause 7.2.9 of A1).
36. The employee had the onus to ensure sufficient medical information was supplied and if he/she failed to do so, as in this case, the application would be declined as a result of insufficient medical information.

ANALYSIS OF EVIDENCE AND ARGUMENT

37. According to the pre-arbitration minute, I am required to determine whether the Respondent complied with the ELRC Collective Agreement 1 of 2013, Annexure E, Clause 6. This being the Collective Agreement for the FETC Bargaining Unit. If the pre-arbitration minute, Applicant’s evidence and arguments are considered it becomes clear that the specific provisions that are being challenged are failure by the Respondent to send the Applicant for a second opinion as well as the allowable timeframe for the Respondent to deal with TIL applications. Finally, the Applicant also disputes the reasons given for declining the applications.
38. Clause 6.3 of ELRC Collective Agreement 1 of 2013, Annexure E, Clause 6, is headed “Temporary Incapacity Leave” and reads as follows: “The employer may require the lecturer to obtain a second opinion before granting approval for additional sick leave. Expenditure in this regard will be met from the employer’s budget.”
39. Clause 6.4 of ELRC Collective Agreement 1 of 2013, Annexure E, Clause 6, reads as follows: “The employer may grant a maximum of 30 working days leave with full pay during which period an investigation must be conducted into the nature and extent of the incapacity. The investigation shall be conducted in accordance with item 10(1) of Schedule 8 of the Labour Relations Act, 1995.”
40. Clause 6.5 of ELRC Collective Agreement 1 of 2013, Annexure E, Clause 6, reads as follows: ”On the basis of medical evidence, the employer may approve the granting of additional sick leave days on conditions that she or he shall determine.”
41. The Applicant argues that given the fact that her TIL applications were declined on the basis of insufficient medical information, The Respondent should have sent her for a second opinion in compliance with clause 6.3 as set out in paragraph 38 above, as this would have given an opportunity for the required information to have been obtained.
42. I cannot agree with this contention. Firstly, the said clause clearly uses the word “may”, implying it is not compulsory to do so, but rather a discretion. Secondly, the Respondent’s witness, who is a Health Risk Manager, testified that the onus is on the employee to provide all information that will assist with his/her case. It is not for the Respondent / Health Risk Manager to go looking for information it does not have. Thirdly, from the evidence, it does not appear that the Respondent and or the Health Risk manager are challenging the fact that the Applicant was ill on the days in question. They are not challenging what the medical practitioners are saying. What the Respondent is saying is that they required more information to properly assess the TIL application. In other words, more information to determine if the said illness should be approved as TIL. This would not require a second opinion, which, in my view, would be used if the Respondent had issues with the finding that the Applicant was ill on the dates in question or with the prognosis or treatment plan, but rather more information from the initial medical practitioner.
43. In view of the above, I cannot find that the Respondent is in breach of Clause 6.3 of ELRC Collective Agreement 1 of 2013, Annexure E, by not sending the Applicant for a second opinion.
44. The abovementioned Collective Agreement only deals with timeframe in clause 6.4, where it states: “The employer may grant a maximum of 30 working days leave with full pay during which period an investigation must be conducted into the nature and extent of the incapacity. The investigation shall be conducted in accordance with item 10(1) of Schedule 8 of the Labour Relations Act, 1995.” While this section may not appear to set a clear timeline, other that stating that a maximum of 30 working days leave with full pay may be granted and that during this period, an investigation should be conducted in accordance with item 10(1) of Schedule 8 of the LRA, it is trite that this Collective Agreement cannot be read in isolation when dealing with TIL. The PILIR document (A1) needs to be read in conjunction with same. Also, in my view, the fact that a maximum of 30 working days leave on full pay may be granted, during which period an investigation must take place, by its very nature means that at the conclusion of the investigation or 30 working day period, whichever comes first, there must be an outcome to the investigation. This conclusion is supported by the contents of the PILAR document.
45. Clause 7.2.9 of PILIR reads: “The employer must within 30 working days after the receipt of both the application form and medical certificate referred to in paragraph 7.1.4 and 7.1.5, approve or refuse temporary incapacity leave granted conditionally……..” This clearly indicates that it is compulsory, hence the use of the word “must”, for the Respondent to either refuse or approve the TIL, which was provisionally granted, within 30 working days after receipt of the application form and medical certificates. It is, to my mind clear, that the 30 working days allowed for the granting of leave on full pay and an investigation as per Clause 6.4 of ELRC Collective Agreement 1 of 2013, Annexure E, is the same 30 day period referred to in Clause 7.2.9 of PILIR. I agree with the Respondent that this timeframe refers to the initial approval or declining of the TIL application (ie. before any grievance process, etc.).
46. In relation to what has been said in paragraph 45 above, the following are the factual timeframes of each application, as per the common cause facts:

46.1 The application for 7 to 10 March 2024 was received by the Respondent on 8 April 2024 and the Applicant received confirmation that same was declined on 12 March 2025.

46.2 The application for 15 to 17 May 2024 was received by the Respondent on 23 May 2024 and the Applicant received confirmation that same was declined on 12 March 2025.

46.3 The application for 14 to 16 August 2024 was received by the Respondent on 20 August 2024 and the Applicant received confirmation that same was declined on 12 March 2025.

46.4 The application for 24 to 25 October 2024 was received by the Respondent on 29 October 2024 and the Applicant received confirmation that same was declined on 12 March 2025.

47. There is no evidence to the effect that the application form did not have the medical certificates attached. As such, the 30 working day period would have started to run on the dates that the Respondent received the applications per paragraphs 46.1 to 46.4 above. It is clear that the Respondent did not comply with the requirement of approving or refusing the TIL, granted conditionally, within 30 working days of having received the application and medical certificates as per clause 7.2.9 of PILIR.
48. The Respondent argues that the Applicant also failed to comply with the required timeframe of having to submit her application within 5 working days of the first day of illness, as per clause 7.1.8 of PILIR (A1). If one looks at the timeframes as set out in paragraphs 46.1 to 46.4 above and cognisance is taken of the reference to “working days”, it appears that only the first and second applications fell fowl of the 5 working day requirement. Clauses 7.1.9.1 and 7.1.9.2 of PILIR sets out what needs to happen where the 5 day period for submission is not complied with. There is no evidence that same was followed. In any event it is not disputed that all the applications were considered and that late submission by the Applicant was not a reason given for declining any of the applications.
49. It is also evident, from the common cause facts and testimony of the Respondent’s witness, that this first application was received by the Respondent on 8 April 2024 and yet it was only received by SOMA on 22 May 2024. The Respondent therefore held onto it for approximately 6 weeks before bringing it to SOMA. Such delays on the part of the Respondent are further problematic in that SOMA categorises applications as compliant or non-compliant using the date they receive it as one of the factors. I find it necessary to briefly mention that no basis in legislation was put forward for the aforementioned categorisation by SOMA.
50. From the above, I am satisfied that the Respondent was in breach of the 30 working day requirement of Clause 6.4 of ELRC Collective Agreement 1 of 2013, Annexure E, read with clause 7.2.9 of the PILIR document. While it is a discretion of the employer to grant or refuse temporary incapacity leave, it is by now trite that any discretion exercised by an employer that effects an employee must be exercised in a fair, reasonable and non-arbitrary manner. In my view, part of exercising such discretion in a fair, reasonable and non-arbitrary manner includes complying with requirements such as timeframes. In PSA and HC Gouvea v Commissioner R Lyster NO and Department of Land Affairs (D751/09) [2013] ZALCD 3 (26 February 2013), the Labour Court in dealing with an employer’s failure to comply with the time period of 30 working days in paragraph 7.5.1(b) for Temporary Incapacity Leave (‘TIL”) held that the fact that the decision had a retrospective affect, “amounts to an unreasonable and arbitrary exercise of a discretion with unfair consequences to the Applicant.”
51. In accordance with the abovementioned decision, of the Labour Court, where an employee’s application is declined outside of the 30 working day period (as is the case in this matter), and acts to prejudice the employee, (declining the TIL, or part thereof, and the recovery of salary paid to the employee, from said employee, while awaiting the outcome of the TIL application) the fact that the decision has retrospective effect “amounts to an unreasonable and arbitrary exercise of a discretion with unfair consequences to the Applicant.” Put differently, if the declining of the TIL application happens outside the allowable 30 day period therefore, as in this case, the retrospective consequences of same (ie the recovery of monies already paid for the period/s later declined) would be unfair.
52. The fact that employees are aware that their applications for TIL may be declined, and that they have no right other than a right that their application be properly and fairly considered, does not affect the issue as it is the retrospective affect that renders the decision to decline TIL an unreasonable and arbitrary exercise of a discretion with unfair consequences to the employee.
53. Finally, the Applicant challenged the reasoning for declining her applications, being in essence that there was insufficient medical information and that the Applicant had a poor sick absence record. She effectively submitted that the Respondent was obliged to request further information from the medical practitioners and should have sent her for a second opinion in order to obtain the extra information they sought. The Respondent’s witness testified in detail as to why they had not done so and what they required. I do not intend repeating same here. The crux of this witnesses’ testimony was that in order to determine if the absence qualifies to be approved as TIL there is more information required than just the usual requirements for normal sick leave. Also that same had to be supplied by the Applicant and only if supplied would they request further information where required. It was not their obligation to obtain information for the application that had not been supplied by the Applicant. I can find no issue with the explanation provided. On the evidence, I cannot find that the Health Risk Manager had been given the required information by the Applicant or that in the absence of same the Health Risk Manager was obliged to send the Applicant for a second opinion or request information from the medical practitioners. As such I can find no issue with the reasoning given by the Health Risk Manager.
54. Clause 69.9 provides that Section 138 of the Act, read with the changes required by the context, applies to any arbitration conducted in terms of this section.
55. In terms of section 138(9) of the LRA “[a] commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award-
    (a) that gives effect to any collective agreement,
    (b) that gives effect to the provisions and primary objects of this Act,
    (c) that includes, or is in the form of a declaratory order.”

AWARD

56. The Respondent, the Department of Higher Education and Training, has failed to comply with the terms of Clause 6.4 of ELRC Collective Agreement 1 of 2013, Annexure E read with clause 7.2.9 of the PILIR document, by declining the Applicant’s TIL applications, for the periods as set out in paragraphs 46.1 to 46.4 above, outside of the prescribed period allowed therefore.
57. As a consequence of the above, the late decision to decline the applications cannot have retrospective effect on the Applicant and as such the monies paid in terms thereof are not recoverable from the Applicant’s salary.

Clint Enslin
(ELRC) Arbitrator