Commissioner: VEESLA SONI
Case No.: ELRC1378-25/26KZN Date of Award: 07 AUGUST 2026

In the ARBITRATION between:

SHOLAY SRIKISSAN APPLICANT

and

DEPARTMENT OF EDUCATION – KWAZULU NATAL RESPONDENT

Union/Applicant’s representative: Ms S Srikissan

Pietermaritzburg


Respondent’s representative: Ms Noma Nkosi
185 Langalibalele Street
Pietermaritzburg

DETAILS OF HEARING AND REPRESENTATION

1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
   “ELRC”) in terms of Section 186 (2) (a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on the 30 April 2026 and was finalized on 3 August 2026. The matter was heard on a virtual platform.
2. The Applicant, Ms Sholay Srikissan appeared in person. The Respondent was represented by Ms Noma Nkosi, of the Department of Education in Kwa Zulu Natal.

ISSUE TO BE DECIDED

3. The matter was referred as an unfair labour practice in respect of leave pay.
4. The issues were narrowed at the arbitration process, and it was agreed that the only issue for determination was whether the Applicant was entitled to be reimbursed the deductions made from her salary in respect of sick leave.

BACKGROUND

5. The Applicant was employed with the Respondent as an Educator, post level 1, at TPA School. Her salary was at Post level 1, applicable to grades 1 to 7. The Applicant earned a salary of R33 500-00 per month. The Applicant was appointed on 5 April 2016. She stated that she was on sick leave and was not paid for the period between 2023 to 2025.
6. The Applicant’s case was that she was on an approved sick leave but was not paid for that period. Deductions were made from her salary for the periods that she was on sick leave, and she asked to be compensated, by way of reimbursement.
7. The Respondent’s case was that there were deductions made from the Applicants salary as she failed to comply with the departmental policy in respect of her leave.

SURVEY OF EVIDENCE AND ARGUMENTS

8. I do not intend to deal with every aspect of the evidence and or argument of each party but will only record the part of the evidence and argument that I deem necessary for purposes of this determination.

Applicant’s case

9. The Applicant submitted that the leave was not paid as the principal claimed that she did not send the forms alternatively the principal did not sign the forms as approved leave. The principal failed to communicate with her. Meetings were held time and time again wherein the principal requested for the leave forms that were already submitted. In March 2025 she was not paid her salary. The total amount due in respect of unpaid sick leave was the sum of R 107 950-40. The period for the unpaid leave is listed below:
   • 12 to 14 April 2023
   • 15, 16 and 31 May 2023
   • 19 September 2023
   • 8, 9, 19 and 22 June 2023
   • 1 to 7 February 2023
   • 30 to 31 March 2023
   • 4 to 5 April 2024
   • 17 July 2023
   • 4 August 2023
   • 6 and 15 February 2024
   • 19 July 2024 (deducted twice)
   • 15, 16, 25 and 26, 30 July 2024
   • 23 August 2024
   • 14 and 15 October 2024
   • 29 November 2024 (deducted twice)
   • 6 December 2024
10. The Applicant stated that her salary for March 2025 was not paid. This was a sanction for an alleged misconduct in 2022. In respect of her sick leave, she provided all the documents with medical certificates but it was not processed. The principal stated that the forms were not handed to him but she noticed that the forms, that she submitted, was on his table. She was not furnished with documents from the Department. She asked to be compensated for the amounts deducted from her salary which amounted to R 107 950-40.

Respondent’s case:

11. Bijay Sewpersad was the principal for almost 10 years. He referred to page 12 of the Respondent’s bundle. He was aware of the dates that leave was not paid. His responsibility was to recommend leave based on the submission of the form and supporting documents. Educators were entitled to 36 days’ sick leave in a three-year cycle. In respect of this cycle, his responsibility was to make a recommendation. He was not the person who granted the approval. After the expiry of the 36 days the educator had to complete annexure A, the temporary incapacity leaves forms (less than 30 days) or Annexure B which was for periods longer than 30 days.
12. Sewpersad stated that the Applicant was awarded her leave for the normal leave cycle, being 36 days. He recommended her leave but at times the Applicant failed to submit her ordinary leave forms. He had several meetings with the Applicant advising that her leave forms had to be submitted to his office, within 5 days from commencement of the leave. Despite numerous meetings with the Applicant, she still failed to submit the required leave forms. In those instances, he completed the form and stated that no leave forms were submitted. It was the decision of the Department to grant leave with pay or without pay.
13. Leave forms had to be accompanied by annexures, such as blood results, and the appendix 1 which was a form completed by the treating doctor. There were instances when no leave forms were submitted or the appendix was incomplete hence, he was unable to recommended leave. The dates 1 to 7 February 2023 had no appendix attached to it. On 30 and 31 March 2023, no leave form was submitted. From 17 July 2023 to 4 August 2023, there was no leave form submitted. The Applicant was absent from July 2023 to the end of that year. She provided annexure A for 3 August 2023. It was only for one day.
14. Sewpersad said Alexander Forbes was a Health Risk Manager appointed by the Department. All annexures, A and B were evaluated by them. They declined her application for 15 and 16 February 2024 and the reasons were furnished to her. On 4 and 5 April 2024, he supported the application for leave but it was rejected by the Health Risk Manager, on grounds of insufficient evidence.
15. There was no leave forms submitted for: 19, 25 and 26 July 2024, 30 July 2024 to 2 August, 5 to 8 August 2024, 19 to 23 August 2024. He was requested to courier a demand for the leave forms from her. He attended to such a request, but he still did not receive the leave forms. On 14 and 15 October 2024, the appendix was not completed. This was also couriered to the Applicant to rectify. For 29 November 2024 and 6 December 2024 there were no leave forms. On 22 April 2025 he was forced to submit the Applicant’s leave forms to the department indicating that he had not received the leave forms, despite couriering the request to her, hence he was unable to recommend the leave.
16. Sewpersad said that whenever the Health Risk Manager granted leave without pay, they attached the grievance form. The Applicant had an opportunity to contest her leave without pay. He had no knowledge of any grievance for leave without pay. The temporary leave was not supported by him when there was insufficient information. Health Risk assessed all the evidence and medical condition, and then made a decision. Recommendations came from Health Risk manager to Human Resource and then sent to the Applicant. Human Resource made the decision to either grant or decline the paid sick leave, based on the recommendation of Health Risk Manager.
17. Sewpersad confirmed his compliance with the leave policy, whereby he requested for the leave forms within 2 working days. He had several meetings with the Applicant regarding compliance. Currently the Applicant was not reporting for duty.

ANALYSIS OF EVIDENCE AND ARGUMENTS

18. This dispute is referred as an unfair labour practice. An employee who alleges that she is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair. The issue of fairness depends on the circumstances of a particular case and essentially involves a value judgement.
19. The overall test is one of fairness has now been confirmed in the case under discussion. The Constitutional Court followed Gcaba v Minister for Safety & Security & others (2010) 31 ILJ 296 (CC). and found that that a failure to promote which had no direct consequences for other citizens were not administrative action subject to the review test of unreasonableness:

“The wholesale adoption of review tests, and notions of ‘setting aside’ an employer’s decision and sending it back to the employer for decision anew, thus appears misplaced. Rather the yardstick of fairness to both parties…is in fact apposite. This does not mean that when a selection process is unreasonable, it should not be identified as such, but that such irrationality goes to the issue of fairness. The clear wording of s 186 (2) of the LRA supports such an approach…
In this matter the fairness yardstick… has been used by the commissioner. He has found that in a situation where the applicant’s post (In which he had been acting for five years) remained vacant after his non-appointment, and where the city did not proffer any rationale for the pass mark in respect of the written assignment, nor explain the method of allocation of marks, it had been unfair not to appoint him.”

20. The Applicant claimed that she was not paid her sick leave which amounted to R 107 950-40 and requested payment for same. This amount was accumulative for the period 2023 to 2025. Her claim fell under the ambit of an unfair labour practice dispute, namely; section 186(2)(a),191(5)(a)(iv) and 193(4) of the Labour Relations Act. These provisions seek to give practical effect to the constitutional right to fair labour practices set out in section 23(1) of the Constitution for the Republic of South Africa, 1996. The Applicant had to demonstrate that had it not been for the unfair conduct of the Respondent she would have been paid her leave. The onus rested on the Applicant to establish that the conduct of the Respondent was arbitrary or motivated by an unacceptable reason.
21. In this regard it must be stated that an arbitration does not entail a hearing de novo, but an assessment of the employer’s decision. I turn to the test as laid out in Sidumo v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC), which is a landmark case in South African labour law. The Constitutional Court held that the test in promotion disputes, was that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair.
22. The Applicant stated that she complied with the policy and rules for approved sick leave. She submitted the leave forms, but it was either not processed or not signed by the principal. She claimed that she was treated unfairly as the principal favored certain teachers. Despite being handed the claim forms for sick leave, the principal said that she failed to submit it. The following dates were unpaid sick leave:12 to 14 April 2023, 15, 16 and 31 May 2023, 19 September 2023, 8, 9, 19 and 22 June 2023, 1 to 7 February 2023, 30 to 31 March 2023, 4 to 5 April 2024, 17 July 2023, 4 August 2023, 6 and 15 February 2024, 19 July 2024 (deducted twice), 15, 16, 25 and 26, 30 July 2024, 23 August 2024, 14 and 15 October 2024, 29 November 2024 (deducted twice) and 6 December 2024.
23. The Applicant submitted that all the relevant information was handed to the principal and she had no knowledge why it was not processed. She calculated the deductions to be the sum of R107 950.40 which she requested that the Department must reimburse her. The leave periods where deductions were made ranged from 1 February 2023 up to March 2025. During this period one month’s salary was deducted.
24. Under cross-examination, the Applicant confirmed she was subjected to disciplinary processes and was given a sanction of one month’s suspension without pay. She however disputed that she was aware of the sanction’s implementation in March 2025, which was the month she was not paid that salary. The issue about an unfair labour practice in respect of disciplinary action was not the dispute at this arbitration as the salary for March 2025, was a sanction. I reiterate that the claim over the sanction fell outside this dispute.
25. Turning to the issue of the leave, the Applicant was unable to comment under cross-examination why the documents were not furnished to the leave section, when requested to do so. Ms Nkosi cross-examined the Applicant about the period, 30 to 31 March 2023. The incapacity leave was not approved, as per page 14 of bundle B. The Applicant was issued with a letter by the Health Risk Manager requesting for documents, which the Applicant failed to supply. The Applicant confirmed her non-compliance under cross examination. In this regard the Applicant was unable to substantiate her claim of an unfair deduction.
26. The Applicant further stated under cross examination, that she never received and was unaware of the money owed to the Department, in respect of the leave days, but shortly thereafter admitted that she received the document from the Finance Section.
27. The Applicant’s evidence was contradictory and disjointed. She submitted a referral wherein she claimed the Department was recovering almost R50 000 from her salary, and not the R 107 950.40 which she has now calculated and claimed relief in this arbitration. She further stated that the address on the Recovery of Overpayment document (contained on page 12, bundle B) was incorrect but admitted to receiving emails from the Department. The documents were sent by postal and email. Hence, I am satisfied that it came to her attention. The Applicant failed to take any steps to make representations to the Department regarding the debt as outlined by the document. She failed to file a grievance.
28. I must mention that the Applicant furnished her bundle. Upon perusal I found that it did not contain the supporting information, as required by the leave policy. There were no information or documents that supported her claim, for the periods listed above. There were missing documents, alternatively the annexures were not signed, or the forms were not competed.
29. I do not doubt that the Applicant was indeed ill. I sympathize with her, however there were processes and protocols within the department that required compliance. The Applicant was referred to the applications for temporary incapacity leave (page 14-21) that was submitted for assessment by the Health Risk Manager. It was evident that she did not lodge a grievance to contest the disapproval of her leave application. Aside from that, she failed to provide the additional medical reports as requested.
30. I now turn to the evidence of Sewpersad, the Principal. He was sound, articulate and precise. He presented his evidence is a forthright manner supported by the necessary documents, which were contained in bundle B. For the sake of brevity, I will not repeat all the dates where leave forms were not submitted, or incomplete or lacked annexures. In this regard, I must pause to mention, that for the period claimed, there were correspondence issued to the Applicant, requesting compliance. She failed to submit a comprehensive set of documents. She failed to obtain the necessary input and signatures from her treating doctors. As stated, I don’t doubt that she was ill, but I am certain, based on the evidence before me, that the Applicant simply failed to provide the necessary information. According to Sewpersad, the Applicant was awarded her leave for the normal leave cycle, being 36 days. This was not challenged or disputed. Sewpersad recommended her leave but at times the Applicant failed to submit her ordinary leave forms. He had no reason to be untruthful.
31. Sewpersad stated, with conviction, that he had numerous meetings with the Applicant advising that her leave forms had to be submitted to his office, within 5 days from commencement of the leave. Despite all these meetings she still failed to submit the required leave forms. I must mention that the decision to grant leave with pay or not, rested with the Department and not Sewpersad.
32. Sewpersad listed the dates, claimed by the Applicant, as being unfairly deprived of her leave pay. He stated that from 1 to 7 February 2023 there was no appendix attached to it. No leave form was submitted for 30 and 31 March 2023 and the same applied for 17 July 2023 to 4 August 2023. These are just some of the dates. Alexander Forbes, Health Risk Manager, appointed by the Department., evaluated the sick leave forms. They declined her application for 15 and 16 February 2024 and 4 and 5 April 2024. In this regard it was not disputed that Sewpersad supported the application for leave but it was rejected by the Health Risk Manager on grounds of insufficient evidence.
33. Sewpersad further stated that for July and August 2024, there were no leave forms. It was not disputed that Sewpersad sent a request, by courier, demanding the submission of leave forms. Despite such a demand, none were submitted. There was no appendix attached to 14, and 15 October 2024 leave forms. On 29 November 2024 and 6 December 2024 there were no leave forms. On 22 April 2025 he submitted the Applicant’s leave forms to the department but was unable to recommend paid sick leave.
34. It was the Health Risk Manager that assessed the evidence, supporting documents and medical condition. Recommendations came from the Health Risk Manager and Human Resource made the decision to either grant or decline the paid sick leave. It was not the Principal, Sewpersad, that prevented the Applicant from being paid. There was no evidence to support the Applicant’s claim that she was entitled to paid sick leave. There was no hidden agenda, or malice or unfair motive. It was simply a departmental process and procedure that was disregarded. In assessing the matter, I find that the Applicant has not proven on a balance of probability that the Respondent committed an unfair labour practice. AWARD
35. The Applicant has not proven an unfair labour practice and the application is dismissed.

ELRC COMMISSIONER: VEESLA SONI
DATE : 7 AUGUST 2026