09 July 2025 – ELRC666-24/25FS

CASE NUMBER: ELRC 666-24/25 FS
PANELIST: BONGANI MTATI
DATE: 9 JULY 2025

IN THE ARBITRATION
Between
SADTU obo DINEO PAULINA THUSI APPLICANT
AND
DEPARTMENT OF EDUCATION – FREE STATE RESPONDENT
DATE/S OF HEARING 8 MAY, 10 & 18 JUNE 2025
DATE ARGUMENTS SUBMITTED 25 JUNE 2025
DATE AWARD SUBMITTED 2 JULY 2025

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DETAILS OF THE HEARING AND REPRESENTATION

The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (LRA) on 8 May, 10 and 18 June 2025 virtually at 09h00. Ms Puleng Mofokeng from SADTU represented the Applicant. Mr Solomon Moloi an official from the Department of Education, Free State represented the respondent.
ISSUES TO BE DECIDED
I am required to determine whether an unfair labour practice relating to the provision of benefits to an employee was committed. Further, depending on my finding, l am required to determine the appropriate relief.
BACKGROUND OF THE DISPUTE
This is a dispute related to the provision of the benefit involving the applicant alleging that she was not granted incapacity leave and leave without pay was effected from her salary as a result of taking incapacity leave.
The applicant was an educator of the respondent who applied for incapacity leave that was declined by the respondent and further respondent deducted her salary for leave without pay.
The applicant alleged to have been sick and had exhausted her normal sick days circle and applied for incapacity leave to the respondent as she was still not fit to go to work.
The respondent is the Department of Education, Free State dealing with public education for teaching and learning in schools including paying salaries and some benefits to educators.

SURVEY OF EVIDENCE AND ARRGUMENT
Employee’s case
Witness: Puleng Mofokeng

She testified under oath that she was the representative of the applicant from SADTU being a full time shop steward. She stated that the applicant applied for incapacity leave for the periods 22 to 25 August 2023 and 28 August to 8 September 2023, so in July, August and September 2024 the applicant noticed deductions in her salary for days she applied for incapacity leave, which had been declined by the respondent. She submitted that the total
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amount deducted from the applicant was R4663-95 as leave without pay.
She submitted that the applicant took those incapacity leave dates not knowing whether
approved or not. She stated that the procedure for incapacity is that the respondent
conditionally grants such leave and later inform the applicant whether has approved or declined the application for incapacity leave. She submitted that the applicant was not provided with such response as to whether her incapacity leave was approved or declined.
She submitted that the applicant was issued with declined response of her application for incapacity leave of 25 August 2023 on 22 July 2024 and the other letter declining her incapacity leave application was issued to the applicant on 6 May 2025 declining incapacity leave for 28 August to 1 September 2023. She submitted that when an application is submitted to the employer for incapacity leave, the employer has to respond in writing giving reasons for the response within thirty days to the employee, which the employer failed to adhere to that procedure. She explained that the respondent will allow the employee to lodge a grievance within five days and if employee failed to lodge a grievance within five days, the employer will write to the employee that they deduct salary for leave without pay from the employee’s salary and in this case the procedure was never been followed by the employer.
She stated that the applicant was prejudiced by the conduct of the employer for declining her incapacity leave and deducting salary for leave without pay, as the applicant had not been informed of the decline of her incapacity leave and further not informed of her salary deductions, applicant would have chosen to go to work had she been aware that her incapacity application had been declined.
She further submitted that even if the applicant could had lodged a grievance with to the employer, this would have failed as they were never furnished with the reasons and the recommendation of the health risk manager.
She stated that the applicant sought as relief to be repaid the salary deducted from her amounting to R4663-95 and set aside the refusal of the incapacity leave application.
She submitted during cross examination that the applicant should have lodged a grievance with to the employer even after the salary deductions, had conditions been normal, but they did not have the health risk manager’s report to enable them to lodge their grievance, so she disputed that the applicant had not exhausted all internal processes as she did not have health risk manager’s report and finally stated that she advised the applicant to refer a dispute to the Council
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Witness 2 Dineo Paulina Thusi.
She testified that she was the applicant. She had applied for incapacity leave that was declined by the respondent without being giving any reasons for the decline of her application. She stated that she applied for incapacity leave for five days which was declined and became aware of this decline when her salary was deducted for leave without pay into the total amount of R4663-95 as deducted in July, August and September 2024.
She submitted that she inquired from her principal and district officials with no positive response until her union assisted her to investigate and finally lodged a dispute with the Council. She stated that she became aware of the declination of her incapacity leave application when she received letters not approving her incapacity leave application on October 2024 for 23 to 25 August 2023 and received the other letter on 6 May 2025 declining 28 August to 1 September 2023.
She submitted that she was aware of the procedure of submitting a grievance for the unauthorised application by the respondent as five days after receiving the letter declining the incapacity leave application. However she never received the letter declining her application, instead deductions were made from her salary for leave without pay, which she viewed as unfair to her as procedure was not followed by the respondent.
She stated that she was highly prejudiced by the conduct of the respondent as she suffered financial loss due to unplanned salary deductions, forced to go back to her doctor for another treatment and pay consultation fees, which all resulted to a stress to her, but praised the assistance she received from the provincial official Mr Moloyi.
She stated during cross examination that she started by disregarding salary deduction as the first step as her doctor needed reasons for the decline of her incapacity leave application to make corrections, as she inquired about the declining incapacity leave letter from the respondent’s officials including her principal, so was to make follow up on salary deductions later
She submitted during cross examination that she wanted to lodge a grievance with to the respondent for the declining of her incapacity leave application, but was informed that it will require reasons for the declining of her application, which she felt to submit to her union representative and did not dispute that the respondent never received the grievance from her union as her representative never mentioned any grievance submitted to the respondent in her testimony. She further stated that the union informed her of the 100 days period to lodge a grievance and thereafter to refer a dispute to the Council
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RESPONDENT’S CASE
Witness: Tebogo David Monyane
He testified that he knew the applicant as he dealt with her incapacity leave application which was not approved due to applicant’s doctor failing to provide enough medical report and applicant expected to correct the medical report and resubmit to the respondent for approval.
He submitted that the respondent notified the applicant about the decline of her incapacity leave application as they received from the Health Risk Management and applicant failed to resubmit the corrected medical report, did not lodge a grievance and finally deducted her salary for leave without pay. He stated that had the applicant lodged a grievance to them would have assisted applicant and would have refunded her if were on fault to effect leave without pay to the salary of the applicant.
He submitted that the respondent is still waiting for the corrected report to be resubmitted and reassessed by health risk management for approval, so is not closed for the applicant to correct her medical report and resubmit to the respondent. He further stated that the respondent had never received the grievance from the applicant about her query on the decline of her incapacity leave application and salary deductions, which he stated as the requirement prior to lodging a dispute to the Council and the applicant failed to comply with it.
He submitted during cross examination that the respondent had thirty days to respond to the incapacity leave applications of the employees, but have been encountering delays due to Covid 19 backlogs which led them to fail to comply with 30 days response to employee’s applications for incapacity leave. He further stated that they do not verify whether the employee received the notification or not. In the absence of a grievance lodged after five days of the dispatch of the notice not receiving grievance, the respondent would deduct leave without pay from the salary of the employee in question. He emphasised that the respondent did not deduct leave without pay if a grievance was lodged as they wait for the finalisation of the outcome of the grievance prior to any further action as would be directed by grievance outcome. He further confirmed that leave without pay is the last resort and deducted from the employee’s salary.
ANALYSIS OF EVIDENCE AND ARGUMENT
It is trite that the employee bears an onus to prove an unfair labour practice as defined in
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section 186(2) of the Labour Relations Act (LRA) was committed by the Respondent. The Applicant has to convince the arbitrator that the conduct of the Respondent amounted to an unfair labour practice as defined and distilled from applicable jurisprudence and as envisaged in the law.
Section 186(2) of the LRA reads as follows: “unfair labour practice any unfair act or that omission arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee, relating to the provision of benefits to an employee”. In this case the unfair labour practice challenged involves benefits.
I have to decide whether the dispute relating to the declining the applicant’s application for incapacity leave is an unfair labour practice in relation to with benefits and if so, further determine whether Respondent acted fairly in declining incapacity leave for the applicant as entitled to a benefit as an educator employed by the respondent.
Considering evidence submitted by both parties, l find that the applicant is entitled to the benefit of incapacity leave as it is applicable to all respondent’s employees having followed required procedures to be approved to be entitled to the employee, which is applicant in this case. In this case l find that the applicant had applied for the incapacity leave to the respondent, which was declined due to insufficient information in the medical report that required to be corrected and resubmitted to the respondent. The applicant could not resubmit it due to her not receiving in time declined application letter from the respondent.
Based on the above reasons, l am of the view and find that the applicant should have inquired from the respondent after noticing her salary deduction for leave without pay or lodged a grievance prior to referring a dispute to the Council.
Therefore l conclude that the applicant had prematurely referred this case to the Council having not exhausted all the necessary internal processes as testified by Mr Monyane and corroborated by the applicant and Ms Mofokeng that they did not lodge a grievance due to absence of reasons for the decline of applicant’s incapacity leave as not furnished by the respondent in time.
I reject evidence that the applicant felt her grievance would not be considered by the respondent without reasons for the decline of the incapacity leave, as respondent testified that they are still waiting for the corrected medical report or lodgement of a grievance to the deductions of leave without pay, which Mr Monyane submitted that they would correct and
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repay the applicant if are at fault. I am further of the view that even the applicant’s doctor was prepared to correct his report as consistently inquired from the applicant to bring reasons for the decline of her incapacity leave for resubmission to him as testified by the applicant, which applicant finally consulted her doctor for medical report correction.
In the case of Apollo Tyres SA (Pty) Ltd v CCMA (2013) 5 BLLR 434 (LAC) benefit means existing advantage or privilege to which an employee is entitled as a right or granted in term of a policy or practice subject to the employer’s discretion. Based on these reasons, l view as much as the applicant is entitled to the incapacity leave benefit, applicant must exhaust all internal processes prior to referring her dispute to the Council.
REMEDY
The applicant must resubmit her corrected medical report from her doctor to the respondent for reconsideration and or lodge a grievance for the decline of her application for incapacity leave that resulted to the deduction of leave without pay from her salary.
AWARD
I find that the respondent, Department of Education Free State has not committed an unfair labour practice against the applicant, Dineo Paulina Thusi as intended in terms of section 186 (2) of the LRA by declining applicant’s incapacity leave application relating to benefits as the applicant had not complied with all the internal processes.
The applicant’s referral is premature in that she had not complied with all internal processes prior to referring her case to the Council.
The application for unfair labour practice related to incapacity leave benefit is refused.