IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No ELRC337-25/26FS

In the matter between:

SADTU obo Sefatsa L. Applicant

and

Department of Education – Free State Respondent

PANELLIST: Nkosinathi Cotho

HEARD: 28 July 2026

DELIVERED: 07 September 2026

Representation:

Union/Applicant’s representative: Mbuyiselo Frans

Respondent’s representative: T. Tsunke (Labour Relations Manager)

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION

1. This is an arbitration award in the dispute between SADTU obo Sefatsa L. (“the Applicant”) and the Department of Education – Free State (“the Respondent”).
2. The matter was initially scheduled for arbitration on 25 May 2026 and was conducted virtually via Microsoft Teams. The matter was thereafter heard in person at the offices of the Department of Education in Kroonstad on 3 July 2026 and 28 July 2026.
3. The Applicant was present and was represented by Mr Mbuyiselo Frans, a SADTU official.
4. The Respondent was represented by Mr Thulo Tsunke, Labour Relations Manager.
5. The proceedings were conducted in English and were recorded.

ISSUE TO BE DETERMINED

6. I am required to determine whether the Respondent committed an unfair labour practice as contemplated in section 186(2)(b) of the Labour Relations Act 66 of 1995, as amended (“the LRA”) / section 13 of the ELRC Constitution, by failing to properly apply and administer its policy regulating temporary incapacity leave and by deducting the Applicant’s remuneration following the purported refusal or non-approval of her temporary incapacity leave applications.
7. If I find that an unfair labour practice was committed, I am required to determine the appropriate relief.

BACKGROUND

8. The Applicant is employed by the Respondent as a Post Level 1 educator. She commenced employment on 10 October 2008.
9. At the time relevant to this dispute, the Applicant earned approximately R35 000.00 per month.
10. The dispute concerns temporary incapacity leave applications relating principally to the following periods:
    10.1 8 to 10 April 2024;

10.2 a period in July 2024; and
10.3 2 to 13 December 2024.
11. The Applicant’s case is that she had exhausted her normal sick leave and therefore utilised the temporary incapacity leave mechanism provided for in the applicable policy.
12. The Applicant testified that she consulted medical practitioners, obtained medical certificates and submitted the relevant temporary incapacity leave applications through the school principal for onward transmission to the Department.
13. She further testified that she was suffering from medical conditions which affected her ability to perform her normal duties and that the principal was aware of her condition. According to her evidence, the principal signed the relevant documentation and was aware of her medical difficulties.
14. The Applicant testified that, notwithstanding the submission of her applications and medical documentation, the Respondent did not deal with the applications within the prescribed period.
15. She further testified that she was not referred for a secondary medical opinion and that she was not furnished with a proper and timeous decision explaining the basis upon which her temporary incapacity leave applications had been refused.
16. The Applicant stated that she became aware of deductions only when she received her salary advices. She testified that the deductions adversely affected her financial position.
17. The Applicant accordingly seeks payment or restoration of the amounts deducted from her remuneration in respect of the disputed periods.

APPLICANT’S EVIDENCE

18. The Applicant testified under oath that she became ill and consulted a medical practitioner who booked her off from 2 December 2024 to 13 December 2024.
19. She testified that she submitted her temporary incapacity leave application and medical documentation and that the principal signed the relevant documents.
20. She further testified that she had previously submitted applications for temporary incapacity leave, including applications concerning April and July 2024, and that some of those applications had also been declined.
21. The Applicant stated that, when she submitted the December 2024 application, she had already exhausted her normal sick leave and therefore followed the temporary incapacity leave process.
22. According to the Applicant, she was not informed within the prescribed period that her application had been refused.
23. She testified that the Department later requested further information and that she relied upon the medical information already supplied by her treating practitioner.
24. The Applicant explained that obtaining further medical reports would impose additional financial costs upon her.
25. She further testified that she had consented to the Respondent accessing relevant medical information and that she expected the Department, where necessary, to obtain further information from her treating practitioners.
26. The Applicant disputed the Respondent’s contention that she had simply failed to provide the required information.
27. She also testified that the Department had not referred her for a secondary medical opinion as contemplated by the policy.
28. Under cross-examination, the Applicant maintained that she had submitted the relevant applications through the principal and that she was not provided with proof of receipt by the Department.
29. She further maintained that the relevant medical information had been submitted and that the Respondent had not properly informed her of the status or outcome of her applications within the prescribed period.
30. The Applicant conceded that she did not have all the documentary proof of submission in her possession, explaining that applications were submitted through the school and that copies or acknowledgements were not routinely provided to her.

RESPONDENT’S EVIDENCE

31. Mr Tsunke testified under oath on behalf of the Respondent.
32. His evidence was that temporary incapacity leave is not an automatic entitlement and that it is granted at the discretion of the employer after an appropriate assessment.
33. He testified that an employee who has exhausted normal sick leave must provide sufficient medical information to substantiate the incapacity.
34. The Respondent contended that the Applicant had not provided the additional medical information requested from her.
35. The Respondent further relied upon the Health Risk Manager’s assessment and maintained that the assessment found the Applicant fit to perform her duties.
36. Mr Tsunke testified that the Applicant was afforded an opportunity to provide additional medical information but failed to do so.
37. He further testified that the Applicant did not provide new information when she pursued her grievance.
38. During cross-examination, however, Mr Tsunke conceded that the prescribed timeframes contained in the policy had not been complied with.
39. He explained the non-compliance partly by reference to the December school holidays and the unavailability of officials.
40. He nevertheless maintained that the failure to comply with the prescribed timeframe did not mean that the Applicant automatically became entitled to temporary incapacity leave.
41. It was also put to the Respondent that the Applicant had submitted her applications within the prescribed period. Mr Tsunke accepted that the Applicant had complied with the requirement to submit the application within the prescribed period.
42. It was further put to him that the policy permitted the employer to refer an employee for a secondary medical assessment where appropriate. The Respondent’s evidence was that the Health Risk Manager was the professional medical assessor and that the Applicant had not been taken for a separate second opinion.
43. The Respondent submitted that the Applicant had failed to discharge the evidentiary burden of proving that she was too ill or injured to perform her duties and that, in the circumstances, the deductions were justified.

ANALYSIS OF THE EVIDENCE

44. I have considered the oral evidence, the documentary evidence placed before me, the submissions of both parties and the applicable legal framework.
45. In determining this dispute, I am mindful that the Applicant bears the onus of establishing, on a balance of probabilities, that the Respondent committed an unfair labour practice as contemplated in section 186(2)(b) of the LRA / section 13 of the ELRC Constitution.
46. The dispute concerns the provision of an employment benefit; namely temporary incapacity leave and the remuneration consequences arising from the determination of such leave.
47. The question is therefore not simply whether the Applicant was medically incapacitated. The enquiry also concerns whether the Respondent administered the applicable temporary incapacity leave policy in a fair, rational and procedurally compliant manner.
48. The conditions of service applicable to educators are regulated by the Employment of Educators Act 76 of 1998, the Personnel Administrative Measures (“PAM”), applicable collective agreements and policies, including the Policy and Procedure on Incapacity Leave and Ill-Health Retirement (“PILIR”).
49. In MEC for Education, KwaZulu-Natal v Singh (1188/2021) [2023] ZASCA 92; 2023 (44) ILJ 2447 (SCA), the Supreme Court of Appeal recognised that PILIR applies to educators and forms part of the statutory and regulatory framework governing their conditions of service. The Court further recognised that PILIR provides for the careful administration of temporary incapacity leave and requires proper investigation and fair dealing with an educator seeking such relief.
50. The August 2021 PILIR provides that normal sick leave is 36 working days in a three-year cycle and that, once normal sick leave has been exhausted, the employer may, at its discretion, grant temporary incapacity leave.
51. Importantly, the discretion afforded to the employer is not unfettered. It must be exercised within the framework of the policy and upon consideration of the relevant medical and other information.
52. The policy defines the Health Risk Manager as an independent multidisciplinary medical entity appointed to assess and advise the employer concerning applications for incapacity leave.
53. The policy further places responsibility upon the employer to process applications and complete the relevant reports within the specified timeframes.
54. The policy requires the employer, with due consideration of the Health Risk Manager’s advice, to make the final decision on the employee’s application.
55. The policy therefore contemplates a structured process rather than an informal administrative decision to deduct an employee’s salary.
56. The employee must submit the prescribed application and supporting medical documentation. The employer, in turn, must properly process the application, refer it to the Health Risk Manager where required, consider the relevant medical evidence and advice, and communicate the outcome to the employee.
57. The evidence before me establishes that the Applicant submitted her applications through the school principal and that the principal signed the relevant documentation.
58. I accept the Applicant’s evidence in this regard. Her evidence was materially corroborated by the fact that the Respondent did not dispute that applications had in fact been submitted.
59. More importantly, the Respondent’s own representative conceded during cross-examination that the prescribed timeframes were not complied with.
60. The Respondent sought to explain the delay by referring, amongst other things, to the December school holidays and the availability of officials.
61. I do not find this explanation sufficient to excuse non-compliance with a prescribed policy procedure.
62. The policy does not make compliance dependent upon whether officials are available during a particular period. Where the Department has adopted a policy prescribing specific periods within which applications must be processed, the Department is expected to organise its administrative processes in a manner that enables compliance.
63. The fact that the Applicant’s application fell close to the school holidays cannot, without more, deprive her of the procedural protection created by the policy.
64. The Respondent also relied on the contention that the Applicant failed to provide further medical information.
65. I accept that an employee seeking temporary incapacity leave bears a responsibility to provide sufficient medical information to substantiate the application.
66. The policy expressly requires an employee to provide sufficient proof that he or she is too ill or injured to perform the work concerned.
67. The policy further permits additional medical evidence and written motivation to accompany an application.
68. However, the evidence before me does not establish that the Applicant’s applications were rejected as incomplete at the outset or that they were returned to her in accordance with the prescribed procedure for completion.
69. On the contrary, the Respondent proceeded to consider the applications and relied upon an alleged assessment by the Health Risk Manager.
70. If the Department considered the information supplied by the Applicant inadequate, the proper course was to process the application in accordance with the PILIR, obtain the necessary additional information and obtain the appropriate medical advice before making a final decision.
71. The Respondent’s evidence that the Health Risk Manager found the Applicant fit for duty was not supported, in the evidence before me, by the production of the Health Risk Manager’s report or by the evidence of the medical assessor who made the assessment.
72. I am accordingly unable to attach decisive evidentiary weight to the bare assertion that the Health Risk Manager found the Applicant fit for duty.
73. This is particularly so because the Applicant disputed that she had been properly assessed and contended that she had not been afforded a secondary assessment.
74. I do not, however, find that the absence of a secondary assessment automatically establishes that the Applicant was entitled to temporary incapacity leave. The policy does not make a secondary assessment compulsory in every application.
75. What is significant is that the Department was required to follow the prescribed assessment process and make a properly informed decision.
76. The evidence does not satisfy me that this occurred in the manner contemplated by the policy.
77. The Respondent was also required to communicate a decision to the Applicant in writing, together with reasons where the application was refused.
78. The evidence establishes that deductions were made from the Applicant’s remuneration, while the Applicant maintained that she was not provided with a proper and timeous written decision dealing with the applications and explaining the basis for the deductions.
79. The Respondent did not satisfactorily demonstrate that the deductions were preceded by a properly communicated final decision complying with the policy.
80. In my view, this distinction is important.
81. A lawful refusal of temporary incapacity leave following a proper investigation and decision does not necessarily constitute an unfair labour practice merely because the employee disagrees with the outcome.
82. Equally, an employer cannot simply deduct remuneration and thereafter rely retrospectively upon an alleged medical assessment without demonstrating that the prescribed process was properly followed.
83. In POPCRU and Another v Department of Correctional Services and Another [2016] ZALCD 25; (2017) 38 ILJ 964 (LC), the Labour Court held that an employer’s failure to respond to a temporary incapacity leave application within the prescribed period does not, by itself, mean that the employee is automatically entitled to such leave.
84. I am bound to apply that principle. I therefore do not find that the Respondent’s failure to comply with the 30-working-day period automatically converted the Applicant’s applications into approved temporary incapacity leave.
85. The present matter, however, goes further than mere delay.
86. The Respondent’s own evidence establishes non-compliance with the prescribed procedural timeframes. In addition, the Respondent failed to place sufficient evidence before me demonstrating that the applications were processed, assessed and finally determined in accordance with the requirements of the PILIR.
87. The Applicant was entitled to have her applications considered in accordance with the applicable policy before adverse financial consequences were imposed upon her.
88. The Respondent’s failure to follow its own prescribed process, coupled with the absence of adequate evidence demonstrating a properly constituted final decision, rendered the treatment of the Applicant’s temporary incapacity leave applications procedurally unfair.
89. I therefore find, on a balance of probabilities, that the Respondent committed an unfair labour practice relating to the provision of a benefit as contemplated in section 186(2)(b) of the LRA / section 13 of the ELRC Constitution as amended.

LEGAL FRAMEWORK AND THE ELRC

90. The ELRC derives its dispute resolution mandate from the Labour Relations Act and its Constitution and Dispute Resolution Procedures.
91. The ELRC Constitution provides the framework within which disputes concerning the employment relationship and conditions of service of educators are referred and determined.
92. The dispute before me falls within the Council’s jurisdiction because it concerns an alleged unfair labour practice relating to a benefit arising from the Applicant’s conditions of employment.
93. In Public Servants Association obo De Bruyn v Minister of Safety and Security and Another [2012] ZALAC 14; [2012] 9 BLLR 888 (LAC); (2012) 33 ILJ 1822 (LAC), the Labour Appeal Court confirmed that disputes concerning incapacity leave are labour disputes which are to be determined through the applicable bargaining council mechanism rather than by bypassing the labour dispute resolution system.
94. The principle in De Bruyn is relevant in confirming that the dispute concerning the application and administration of temporary incapacity leave falls within the specialised labour dispute resolution framework.
95. The Constitutional right to fair labour practices in section 23(1) of the Constitution is also relevant. The statutory and policy framework governing educators’ conditions of service must be applied in a manner consistent with fairness, accountability and lawful labour administration.
96. The Respondent, as an organ of state and employer, is required to administer its employment policies consistently and fairly.
97. The PILIR itself emphasises consistent, fair and objective health risk management.
98. I accordingly find that the Respondent’s failure to properly administer the Applicant’s temporary incapacity leave applications, and its consequential treatment of the disputed periods as unpaid absence without satisfactorily demonstrating compliance with the prescribed procedure, constituted unfair conduct relating to the provision of an employment benefit.

RELIEF

99. Having found an unfair labour practice, I must determine an appropriate remedy.
100. Section 193(4) of the LRA empowers an arbitrator who has determined an unfair labour practice to determine the dispute on terms considered reasonable, including an order for payment of compensation.
101. The Applicant seeks payment of the amounts deducted from her salary in respect of the disputed periods.
102. I have considered whether the appropriate remedy is simply to direct the Respondent to reconsider the applications or whether the circumstances justify financial relief.
103. The periods in dispute relate to April, July and December 2024. The applications have already been subjected to a lengthy administrative process, and the Applicant has suffered the financial consequences of the Respondent’s failure to administer the applications properly.
104. A further referral back to the Respondent without addressing the financial prejudice suffered by the Applicant would not, in my view, constitute an effective remedy.
105. I accordingly consider it just and equitable that the Respondent restore to the Applicant the amounts deducted from her remuneration in respect of the disputed temporary incapacity leave periods.
106. I do not, however, consider it appropriate to award an amount exceeding the actual deductions proved by the Applicant. The purpose of the remedy is to restore the benefit improperly denied, rather than to confer a windfall.
107. The Respondent is therefore directed to determine from its official payroll records the exact amounts deducted from the Applicant’s remuneration in respect of the following periods:

107.1 8 to 10 April 2024;
107.2 the disputed day in July 2024; and
107.3 2 to 13 December 2024.
108. The Respondent must provide the Applicant and her union with a written calculation of those deductions and pay the total amount to the Applicant.
109. The payment must be made within 30 calendar days from the date of this award.
110. The payment shall be subject to lawful statutory deductions, if applicable.
111. Nothing in this award should be interpreted as creating a general rule that every failure by an employer to determine a temporary incapacity leave application within the prescribed period automatically entitles an employee to paid temporary incapacity leave.
112. This award is based on the particular facts of this matter, including the Respondent’s admitted non-compliance with the prescribed process, the absence of satisfactory evidence demonstrating a properly completed assessment and final decision, and the consequential deductions made from the Applicant’s remuneration.

AWARD

113. I find that the Respondent, Department of Education – Free State, committed an unfair labour practice relating to the provision of a benefit as contemplated in section 186(2)(b) of the Labour Relations Act 66 of 1995, as amended / section 13 of the ELRC Constitution as amended.
114. The Respondent is ordered to calculate and pay to the Applicant, Ms Sefatsa L., the actual amounts deducted from her remuneration in respect of:

114.1 8 to 10 April 2024;
114.2 the disputed period of 1 July 2024; and
114.3 2 to 13 December 2024.
115. The Respondent must provide the Applicant and SADTU with a written calculation and supporting payroll documentation reflecting the deductions within 15 calendar days of this award.
116. The Respondent must pay the calculated amount to the Applicant within 30 calendar days from the date of this award.
117. The Respondent must ensure that the payment is made into the Applicant’s normal salary/bank account, subject to lawful statutory deductions where applicable.

DATED AT WELKOM ON THE 7th DAY OF SEPTEMBER 2026.

Nkosinathi Cotho

ELRC Panellist