09 May 2025 -ELRC1270-24/25EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL

HELD AT ZWELITSHA

Case No: ELRC1270-24/25EC

In the matter between

NAPTOSA obo MNENE, SIYASAMKELA Applicant

and

THE DEPARTMENT OF EDUCATION: EASTERN CAPE Respondent

Arbitrator: Pumeza Ndabambi

Date of award: 07 May 2025

SUMMARY:

Clause 69 ELRC Constitution/s33A(2)(a) of the LRA – Non-payment of salary

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

This matter came before the Education Labour Relations Council (ELRC) for arbitration, in terms of section section 69 of the ELRC Constitution and section 33A(2)(a) Labour Relations Act 66, 1995, (the LRA). The Applicant, Siyasamkela Mnene, was represented by Mr Aaron Mhlontlo, an official of NAPTOSA and the Respondent, Department of Education: Eastern Cape, was represented by Mr S. Peter, the Deputy Chief Education Specialist.

The proceedings were held at the Respondent’s Head Office in Zwelitsha on 11 April 2025 and were recorded electronically.

Both parties agreed to submit written closing arguments by no later than 22 April 2025 and the closing arguments were received on 17 April 2025 from the Applicant and the Respondent submitted on 23 April 2025, a day after the deadline. I will accept the Respondent’s arguments on the basis that there is no prejudice on the other party.

ISSUE TO BE DECIDED

I am required to determine whether the conduct of the Respondent in deducting the Applicant’s salary is in contravention of section 69 of the ELRC Constitution, read with section 33A(2)(a) of the LRA, and if so, determine an appropriate remedy.

BACKGROUND TO THE DISPUTE

The Applicant started working for the Respondent on 20 April 2016, as an Educator at Sihlahleni Primary School and her salary was deducted in lieu of unpaid leave. The Applicant seeks, as a remedy, reimbursement of monies deducted.

EVIDENCE AND ARGUMENT

Applicant’s Version

The Applicant’s version was led through the evidence of one witness, Ms Siyasamkela Mnene (the Applicant) and a bundle of documents, the summary of which is outlined below: –

The Applicant testified that she worked at Sihlahleni Primary School in Middledrift and transferred at the end of October 2024 to Fanti Gaqa Primary School in Mdantsane. She resides in East London and had to travel daily to Middledrift. She then initiated a transfer and engaged relevant stakeholders to deal with the transfer process and succeeded in October 2024. On arrival at Sihlahleni Primary School there was another Principal (Mr Sidzathane) who welcomed her to the school, who introduced her to the environment and her duties and obligations. The Applicant performed as expected and submitted everything required of an Educator.

Mr Sidzathane retired and Mr Bavuma was appointed as the new Principal of the school in 2022. During Mr Sidzathane’s tenure, monthly meetings were called to update staff regarding leave. The Applicant took maternity leave and Mr Sidzathane came to the departmental offices, got leave forms and further communicated with the Applicant about her leave and when the Applicant is expected back to school. She was also updated on processes to follow should she wish to extend her maternity leave.

The Applicant presented her salary advice for 20 February 2025, 20 March 2025 and 20 April 2025 which showed two deductions of R4 952.95 and one of R3 962.36. The Applicant became aware of the deduction on receipt of her salary advice which came via email before pay day. The Applicant approached the nearest District office and was told that the deduction is for Leave Without Pay (LWP). She further contacted the Principal and was advised that she had exhausted her leave credits and that the Principal did not recommend her leave.

The Applicant testified that she never had any communication about her leave credits with the school and also none with the HR department of the Respondent. Total days in lieu of LWP is 19 days from 06 September 2024 to 4 October 2024. During this period the Applicant was on official sick leave. The Applicant submitted leave application forms for annual leave from 09 September 2024 to 4 October 2024, a total of 19 days and attached a medical certificate, to the Principal via Whatsapp, which is their form of communication. There was no response from the Principal but the message was blue-ticked to show it was read. There was also a period of school holidays. On the document there was nothing written to show that the leave was approved or not.

Respondent’s Version

The Respondent led its version through the evidence of one witness, Mr Sibulelo Bavuma (Mr Bavuma) and a bundle of documents, the summary of which is outlined below: –

Mr Bavuma testified that he is the Principal of Sihlahleni Primary School from 2022 and on commencement the Applicant was already in the school. In the school he delegated Ms Somana to do leave management. She issues leave forms, takes them to the Principal for signature, keeps copies and updates the leave register.

With regards to the Applicant’s attendance, from 2022 she was always late for work and he addressed her. The Applicant’s reason was that she had to take her child to school and they called her as SMT and she had the same story. It was the case even before Mr Bavuma started and the Applicant was engaged many times until the SMT decided to approach the EDO for advice. The Applicant was called by the EDO and the matter discussed in the presence of the SMT. The Applicant was informed that her actions constituted misconduct. The Applicant was further advised to apply for a transfer to be close where she lives and the parties in the meeting undertook to assist her in that regard.

The Applicant was late again after this meeting and the Principal issued a 1st Written Warning, which the Applicant refused to sign and never provided reasons for the refusal to sign. The SGB and the community were concerned about her late coming, after which there was absence. Mr Bavuma called the Applicant again and the SGB to give clarity on what was happening. There was no agreement reached in that meeting. The Applicant said she would leave the school at that minute because the environment was not good because the community and the Educators have an attitude. The Applicant left on 26 July until the end of the year or until she got transferred to another school. The Applicant sent a Whatsapp message and said she is on sick leave.

Mr Bavuma believes that the Applicant should have applied for leave in the prescribed forms and send to the Principal. She said she was on sick leave until her transfer was approved and she started to send leave forms and a medical certificate from 9 September 2024 to 4 October 2024. The forms were sent on 4 October 2024, which is a long time from 9 September 2024. The Applicant never communicated her whereabouts between 9 September 2024 and 4 October 2024. The Applicant was absent for 18 days, excluding a public holiday. The Principal could not sign the form because it was for annual leave which they do not have because of the school holidays. He signed the normal sick leave forms and did not recommend the leave. The Applicant said she was leaving the school.

In terms of the time of absence from 9 September 2024 to 4 October 2024 there were school holidays from 20 to 30 September and schools opened on 1 October 2024 and the public holiday of Heritage Day was within the school holidays. The days on the attendance register exclude school holidays and Heritage Day. The Applicant was always absent from work, compared to other Educators as the leave register confirms her attendance trend with excessive absenteeism. The unpaid leave record is for 9 to 13 September 2024, 16 to 20 September 2024 and 1 to 4 October 2024. They last saw the Applicant on 26 July 2024. The Applicant had a responsibility to report her whereabouts to her Supervisor or Principal. He also tried to look for the Applicant and she told him she is on leave and that gave the Principal to carry on with the action.

ANALYSIS OF SUBMISSIONS

Section 69(2) of the ELRC Constitution states that for the purposes of this section 69, a Collective Agreement of the Council is deemed to include:

Any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA; and

Subject to clause 7.5, any other basic condition in the BCEA applicable to an employee falling within the scope of the Council, where such employee’s employer is a party to the Council.

In this matter the dispute is referred as a non-payment of salary. It is common cause from the salary advice that the Applicant’s salary was paid, but the issue in dispute is the amounts deducted from the Applicant’s salary.

Salary deductions are regulated in section 34 of the Basic Conditions of Employment Act. Section 34(1) provides as follows:

“An employer may not make deductions from an employee’s remuneration, unless-

Subject to subsection (2), the employee in writing agrees to the deduction in respect of a debt specified in the agreement; or
The deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.”

Chapter H.5.2 of the PAM Document regulates normal sick leave. It provides at H.5.2.2 that it is incumbent upon the Educator to manage his/her sick leave responsibly and with circumspect.

In H.5.2.4 it is stipulated that if an Educator is unable to report for duty due to sudden illness, he/she must immediately notify his/her immediate supervisor of his or her inability to report for duty. An Educator must submit an application for sick leave personally or through a relative, fellow Educator within 5 working days after the first day of absence.

It is common cause that the Applicant did not report for duty for the period 9 September 2024 to 4 October 2024. The Applicant alleges that she contacted Mr Bavuma, after finding out that there would be deductions made from her salary. Upon enquiry from the District office she was told the deduction was in respect of Leave Without Pay (LWP). Mr Bavuma further informed her, upon her enquiry, that she had exhausted her sick leave credits.
The Whatsapp communication between the Applicant and Mr Bavuma, found in the documentary evidence presented shows that the Applicant contacted Mr Bavuma on 23 September 2024, the subject of the conversation is not clear wherein the Applicant is informing Mr Bavuma that she is leaving East London. The second communication via Whatsapp is on 4 October 2024 in which the Applicant attached the leave application forms and the medical certificate, to which there is no response from Mr Bavuma.

In terms of the provisions of PAM at H.5.2.4, the requirement is for an Educator to apply for sick leave within 5 working days after the first day of absence, having informed one’s immediate supervisor immediately. From the evidence presented, there had been no such communication, given that the Applicant testified that she communicated with Mr Bavuma through Whatsapp. There is no Whatsapp message that informs Mr Bavuma about not reporting for work by the Applicant or at least the record of a phone call made. I must find that the Applicant did not report her absence. I find that the Applicant did not apply for her sick leave within 5 working days after the first day of absence.

Coming to the sick leave application, the Applicant applied for annual leave with effect from 09 September 2024 to 4 October 2024 (19 days). It is common cause that from 20 September 2024 to 30 September 2024, the period fell within the school holidays and heritage day fell within the school holidays. It, therefore, is not clear why would the Applicant apply to have that period as annual leave in her application as she was not expected to be on duty. The period in question, according to the attendance register covers the following periods: –

9 – 13 September 2024
1. 16 – 20 September 2024
1. 1 – 4 October 2024.

The above-mentioned period covers 14 working days. Surely an application for annual leave that covers school holidays and public holidays, could not be approved, given the discrepancies particularly on the number of annual leave days that are distorted. On 4 October 2024, the Applicant sent to Mr Bavuma an application for normal sick leave dated 9 September 2024. From the Whatsapp message, the application was sent on 4 October 2024, that being the last day of her sick leave. The application for normal sick leave was not ‘Not recommended’ by Mr Bavuma on 4 October 2024 and the Executive authority also did not approve the leave application on 10 October 2024. The leave forms and the decision not to approve the leave was not communicated to the Applicant.

The Applicant alleges that she was not informed of her leave balances by Mr Bavuma as her supervisor. Mr Bavuma testified that he delegated leave management to Ms Somana. The Applicant also made no enquiries into her leave balances before taking sick leave. If she had a medical certificate on 9 September 2024, she should have made enquiries as part of her own leave management requirements of PAM at H.5.2.2. Such enquiries would assist, after informing Mr Bavuma of her absence, she should have communicated the medical certificate on the same day to allow the school to re-organise their operations.

The fact that the Applicant was not informed of the outcome of her leave application in this regard makes no difference because she submitted on the last day of her sick leave and any communication regarding her sick leave would have been after the fact. The Applicant can therefore not say she was prejudiced as she made no arrangements for her leave to be dealt with timeously. She should have also shown interest in ensuring that she was on approved leave so as to avoid forfeiture of her salary towards LWP. I find therefore that the Applicant did not properly arrange her leave to ensure that it was approved and she had a flexible communication tool with her supervisor that did not require her to meet the Principal physically.

PAM in H.5.2.5 regulates submission of medical certificates and provides at H.5.2.5.1 that Educators who apply for three or more sick leave days must submit a medical certificate. The Applicant submitted hers at the end of the sick leave without ensuring that she was granted such leave. She should have appreciated the fact that in order to get leave one must apply and bear in mind that such an application is subject to approval.

The Applicant was called by SMT and the EDO regarding her attendance issues and warned of possible consequences should the conduct persist. She was also advised to apply for a transfer, which she did and was successful and started on 1 November 2024 at Fanti Gaqa in Mdantsane.

The application for normal sick leave also covers school holidays and public holidays, which also makes her application incorrect and that the Respondent correctly considered working days when dealing with the deductions from the Applicant’s salary. I have alluded to the fact that the application was received on the last day of the sick leave and that such could not place the supervisor in a position to inform the Applicant that her sick leave was not approved. There would be no way the Applicant becomes aware that the leave is not approved beforehand as she failed to deal with such arrangements timeously.

The only failure on the part of the Respondent was not to inform the Applicant to submit a medical certificate within 2 working days, failing which the sick leave period shall be deemed to be leave without pay in terms of PAM at H.5.2.7. The Applicant is also required to manage her leave responsibly, so in this regard both parties had a responsibility towards leave management.

Under these circumstances, the question to be asked is whether the Applicant received remuneration that was not due to her or an overpayment. Given the analysis above, the Applicant did not report for duty on the days mentioned (14) days and was paid a salary during that period and that amounts to an overpayment. The Respondent is therefore entitled to deduct such overpayment as it was not due to the Applicant.

Section 34(1) of the BCEA provides that an employer may not make any deductions from an employee’s remuneration unless—-
- Subject to subsection (2), the employee in writing agrees to the deduction in respect of a debt specified in the agreement; or
- The deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.

B.13 of the PAM Document deals with unauthorised remuneration. At B.13.1 it is stipulated that if any remuneration, allowance or reward is received by an Educator in connection with the performance of his or her work with the employer other than in accordance with the provisions of the EEA or is received contrary to the provisions of the EEA, that Educator shall pay into the relevant Provincial Revenue Fund an amount equal to the amount of such remuneration, allowance or other reward.

The requirements outlined in paragraph 35 are in line with the provisions of section 34(1)(b) of the BCEA and enable the Respondent to deduct the amounts in terms of the legal requirements of PAM Document in B13. I therefore find that the deductions are permitted in terms of a law. In the circumstances I find that the deductions were lawful based on the provisions outlined above.