IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No ELRC85-25/26FS

In the matter between:

SADTU obo Agnes Malebo Applicant / Union

and

Department of Education (Free State) Respondent

PANELLIST: Nkosinati Cotho

HEARD: 27 March 2026

DELIVERED: 06 May 2026

Representation:

Union/Applicant’s representative: Desmond Serape (SADTU Official)

Respondent’s representative: Solomon Moloi (Labour Relations Officer)

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The dispute was set down for arbitration, and it was heard at Department of Education – Free State (Bloemfontein) on 27 March 2026. The Applicant, Agnes Malebo, was present and was represented by Desmond Serape (SADTU full-time shop steward). The Respondent, Department of Education (Free State), was represented by Solomon Moloi (Labour Relations Officer). The proceedings were conducted in English.

ISSUE TO BE DECIDED

2. I am required to determine whether the actions or inactions of the Respondent constitute an unfair labour practice against the Respondent and if found to be the case, I must decide on appropriate relief.

BACKGROUND TO THE DISPUTE

3. The sitting of this arbitration follows the referral of the dispute by the Applicant claiming to have arose on 4 August 2025. The Applicant was employed on 11 February 2000 as a level one teacher. She worked 7 hours per day and 5 days per week. She earned R36 988.00 per month in a Public Education Sector.
4. For the sake of brevity, it is not my intention to re-state the submissions made, except to analyze those submissions which I believe are relevant and important in this matter. I have only referred to the evidence and arguments that I regard as necessary to substantiate my findings and the determination of this award (Section 138 (7)(a) of the LRA). The Respondent submitted bundles, “R” and the Applicant submitted bundle “M”. In addition, pre-arbitration minutes were also exchanged by the parties. There were no objections raised to the use of the bundles for what they purported to be. Closing arguments were submitted on 1 and 2 April 2026 and were duly considered.

SURVEY OF EVIDENCE AND ARGUMENTS
Applicant’s case:

The Applicant Agnes Malebo testified under oath as follows:

5. The bone of contention was based on the deduction of the incapacity leave from 12 January 2023 up to 27 January 2023. The leave was said to have been provisionally approved hence the payment. It was later deducted from the Applicant in March 2025. A total amount of R4 543.47 was deducted from her salary without notice.
6. She Applied for temporary incapacity leave on 13 January 2023. According to the policy the Respondent is supposed to respond within thirty days (30 days) to the application but the employer respondent in approximately seven (7) months from the date of the application. The employer has not complied with its own policy. Having received the response, the Applicant then referred a grievance to the Respondent. She only received the outcome of the grievance from Mr. Peters on 8 April 2025. Two documents were said to be in contrast with the one the Applicant and the Respondent’s witness, Mr. Peters, confirmed to be exchanged between them.
7. The manner in which the processes unfolded have led to her suffering economically, she had fallen behind with her municipal rates and her child school fees. She then had to take a lone and incurred extra interest in the process.

Respondent’s case:
Respondent called Leonardo Peters (Human Resources Manager) who testified under oath as follows:

He explained that if an employee has depleted its three-year sick leave cycle of 35 days, they may apply for TIC (Temporary Incapacity Leave) which is also subject to approval. The Applicant was supposedly informed of the outcome that had declined her application through the school principal. However, it became apparent that it was not the case. The Applicant then filed a grievance which also failed. The witness did not dispute the sequence of events that led to the decline of temporary incapacity leave. He acknowledged the delay in response and attributed the delay in response within 30 days to the turnaround time of the service provider the department uses and the problems they had with outgoing emails at the time of the application.

Under-cross examination, he acknowledged that he gave the Applicant the response to her grievance on 8 April 2025 and it was dated 1 December 2023. He confirmed that there were discrepancies between the document he issued on “M2” and the one on the Respondent’s bundle “R13” as he could recognize the signature on the one of “M2” the date and the ticked boxes. The one on “R13” however, he could not confirm. Analysis of evidence and arguments

Section 185 of the Labour Relations Act, 66 of 1995, as amended, provides that every employee has the right not to be: (a) unfairly dismissed, and (b) subjected to unfair labour practice.

Section 186(2) of the LRA supra further defines unfair labour practice as meaning –
“any unfair act or omission that arises between an employer and an employee involving:

unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee,

the unfair suspension of an employee or any unfair disciplinary action short of dismissal in respect of an employee,

a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement or

an occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.

In civil disputes proof does not have to be beyond reasonable doubt but is based on balance of probability. As presiding officers’ decisions, we take must be evidence based. The decision is taken having considered the credibility of the evidence and witnesses testifying, reliability of evidence and witnesses testifying and probability of both versions as to which version is more probable than the other based on the evidence presented before the presiding officer. Decision is also taken based on applicable legal framework relevant to the case at hand.

The dispute before me relates to the unfair labour practice relating to benefits. It is common cause that both parties relied on the same TIL policy.

In Appollo Tyres South Africa (Pty) Ltd v CCMA and others (DA 1/11 [2013] ZALAC 3; [2013] 5 BLLR 434 (LAC) handed down on 21 February 2013). The Court held the definition of benefit as contemplated in section 186(2)(a) of the LRA was not confined to rights arising ex-contractu or ex-lege, but included rights that judiciary created as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to employer’s discretion and that in this instance the early retirement scheme constituted a benefit”.

The witnesses testified to the same and confirmed that the Applicant did not receive the response timeously as was expected. The Respondent’s witness attributed this to challenges that they experienced as a department at the time. The delay, however, has led to the suffering of the Applicant. This could have been avoided had the timeframes been complied with. This does not take away the discretion of the Respondent to approve or not to approve the TIL. It remains the discretion of the Respondent and that the processes should be followed in a fair manner that will not prejudice the applicants of the benefit.

Having considered the above analysis, the Applicant suffered some form of prejudice because of conditions that were not of her fault. The Respondent failed to comply with its policy by delaying responding to her within the stipulated timeframe stated in the policy. For that reason, the Applicant suffered an unfair labour practice from the Respondent’s actions. She then had to make alternative arrangements (taking a loan) to pay her children’s school fees and her municipal bill, which would have otherwise not have happened. Remedy:

I have considered prejudice suffered in this regard. The Respondent is directed that it compensates the Applicant for one (1) month’s salary of R36 988.00 for the prejudice suffered as a result of the unfair labour practice she suffered. AWARD

The Respondent, Department of Education (Free State) is directed to reimburse the Applicant, Agnes Malebo, the amount of R36 988.00 by no later than 31 May 2026 for unfair labour practice she suffered.

Failure to pay the amounts as dated above may result in interest being charged against the Respondent if it defaults on the payment (see Section 143(2) of the LRA).

Case management is ordered to issue the award to the parties.

Nkosinati Cotho
ELRC Panellist
DATED 06 MAY 2026