In the matter between:

SAOU obo COFFEE, E

and

DEPARTMENT OF EDUCATION – FS Applicant

Respondent

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION:

1. The Arbitration was scheduled for 19 June 2017 in Bloemfontein. The parties agreed to submit written Heads of Argument. Not witnesses were called.

2. Ms Bester represented the Applicant and Mr Ntsuke the Respondent.

3. The Applicant filed Heads of Argument on 7 July 2017, Respondent on 21 July 2017 and Applicant replied on 3 August 2017.

ISSUE TO BE DECIDED:

4. The Applicant applied for Temporary Incapacity Leave (TIL) in terms of ELRC Resolution 7/2001 (hereinafter referred to as the resolution) due to major depression that was precipitated by work related stress. Her application for paid TIL was disapproved. A formal dispute was referred to the ELRC on 4 April 2017. The purpose of this arbitration is to determine whether or not the collective agreement was correctly interpreted and/or applied.

BACKGROUND:

5.1 The Applicant is an Educator for the subjects ELSEN Special Education from Grade 1 to Grade 5 at Jagersfontein I/S. She is a permanent employee of the Free State Education Department since 1979.

5.2 In 2015 the Applicant got very sick and suffered from major depression and was booked off on numerous occasions. The fact that she already exhausted the thirty six (36) days sick leave, she had to apply for TIL. She duly applied on the prescribed forms for TIL and submitted all the necessary medical certificates and reports. She also signed the requested consent form according to which the Respondent is given permission to make contact with her medical practitioner/s if the Respondent needed more information regarding her incapacity.

5.3 On 15 July 2016, the Applicant received a letter from the Respondent informing her that her application for TIL for the period 04/11/2015 – 09/12/2015; 03/03/2016 – 18/03/2016 has been declined.

5.4 The Applicant was given an option to either give consent to utilize her capped leave to cover the period, or to appeal against the decline of her application.

5.5 On 15 September 2016 the Applicant lodged a formal grievance against the Respondent. On 17 October 2016 she was informed by the Health Risk Manager that her grievance was partially unsuccessful, the period 04/11/2015 – 09/12/2015 taken for TIL had been approved but the period 03/03/2016 – 18/03/12016 was still declined.

5.6 In view of the fact that the Applicant regarded the decision taken by the Respondent as unfair, she referred the matter to the Union to act on her behalf.

SURVEY OF THE ARGUMENTS:
APPLICANT’S CASE:

6.1 The Applicant referred to Bundle A, par. 9 of the resolution (Bundle A). The issues to be decided are the following:

6.1.1 Firstly, whether or not the Respondent interpreted and applied ELRC Resolution 7/2001, annexure A, par. 9 correctly:

6.1.2 Secondly, whether the Respondent in its responsibility investigated:

– the extent of the Applicant’s inability to perform her normal duties;
– the possibility to adapt her duties;
– and to give feedback within a reasonable time (30 days) after the Applicant’s application for TIL was submitted.

6.2 The Respondent’s responsibility was to investigate and to take a decision regarding the granting of TIL (additional sick leave with full pay) for the periods as mentioned in paragraph 3.3 above.

6.3 The options available to the Respondent in terms of Annexure A, par. 9 of the Resolution were: (Bundle A).

6.3.1 Par. 9.3: “The Head of Department may require the educator to obtain a second opinion before granting approval for additional sick leave. Expenditure in this regard will be met from the departmental budget.”

6.3.2 Par. 9.4: “The Head of Department may grant a maximum of 30 consecutive working days leave with full pay during which period an investigation must (own emphasis) be conducted into the nature and extent of the incapacity. The investigation shall be conducted in accordance with item 10(1) of Schedule 8 of the Labour Relations Act, 1995.”

6.4 It is the Applicant’s case that the Respondent firstly did not conduct an investigation and secondly did not conduct an investigation within the prescribed time frames.

6.5 The Respondent had thirty (30) days to inform the Applicant whether her application for TIL was approved or not.

6.6 Because she did not receive any indication that TIL had been declined, she accepted that it was granted. The Respondent should have informed the Applicant within thirty (30) days that her TIL has been declined with an option to either return to work or to apply for leave without pay in terms of Section 21 of Chapter J of the Employment of Educators Act 76 of 1998, PAM. If this had happened the Applicant would have most probably applied one of the two options and she would not have been prejudiced.

6.7 The unfairness is clear: Due to the fact that Respondent erred by not informing the Applicant within thirty (30) days that her TIL had been declined, the Applicant was severely prejudiced seeing that she is put in a situation where she has to pay back a huge amount of money without choice which would not have been the case if the Respondent applied ELRC Resolution 7/2001 correctly. To the contrary, one must also ask the question: what should the Applicant have done? If an educator is booked off for more than thirty (30) days one cannot expect an educator to return to work (still being ill) for in case she received feedback “one day” staring that her TIL had been declined? The Applicant was therefore shocked when she was informed that her application for TIL had been declined, more than a year after she applied for TIL which is clearly not in accordance with Annexure A, par. 9 as explained in 4.3 above.

CONCLUSION:

7.1 It is the Applicant’s case that the Respondent failed to comply with the stipulations of ELRC, Resolution 7/2001 (Annexure A, par. 9) and acted grossly unfair when it decided to decline the Applicant’s application of TIL in the manner it did.

7.2 It is her case that she qualified for additional sick leave with full pay as provided for in par. 9.1 of the resolution applicable to educators.

7.3 The same provision is made for Public Servants in terms of PSCBC Resolution 7/2000, par. 7.5.1. In the dispute, case no. PSCB 276-05/06 (PSA obo Roman v Department of Sport, Arts, Culture and Recreation), Adv. Bono dealt with the issue of discretion. (Bundle A).

He wrote:

“In terms of conventional interpretation the word may ordinarily refer to discretion.”

“… However, in terms of paragraph 7.5.1(b) it is evident that the employer is required to exercise this discretion judiciously. The employer has to conduct an investigation within 30 days and in doing so comply with the provisions set out in item 10 of the Code of Good Practice: Dismissal (Schedule B of the Labour Relations Act 66 of 1995 – the LRA). Item 10(2) affords and employee an opportunity to be heard. This is also a requirement in terms of paragraph 2 of resolution 12 of 1999).”

“Thus, while the employer has discretion whether or not to grant leave, the employee has a right that the employer exercises that discretion properly by conducting an investigation within a prescribed time frame and in accordance with the Code of Good Practice. Non-compliance is a breach of the collective agreement and the employee has a right to judicial scrutiny.”

7.4 It is important to also note the interpretation of the law governing the granting of TIL- benefits as it was ruled in the Labour Court in the case of PSA obo Gouves v PSCBC/Commissioner R. Lyster / Department of Land Affairs (2013) D751/09 (LC) dated 26/02/2013.

7.5 Also find SAOU obo C Kok v Free State Department of Education (PSES 683-14/15 FS) where the same issue was argued and the outcome of the Arbitration was that the Applicant was entitled to TIL as well as a more recent ELRC Award that also confirmed that the Applicant was entitled to TIL and that leave without pay implementation must be reversed to approve Temporary Incapacity Leave: SAOU obo Joubert D.G. v Free State Department of Education (PSES 684-16/17 FS).

8. The Applicant prays that the Commissioner would make the following ruling:

8.1 The Respondent did not comply with the provisions of ELRC Resolution 7/2001.

8.2 The Respondent be ordered to approve Temporary Incapacity Leave with full pay for the period 03/03/2016 – 18/03/2016.

RESPONDENT’S CASE:
RESPONDENT’S ANSWER:-

9. AD PARAGRAPH 1:

Common cause.

10. AD PARAGRAPH 2:

Common cause.

11. AD PARAGRAPH 3.1:

Common cause.

12. AD PARAGRAPH 3.2:

Common cause.

13. AD PARAGRAPH 3.3:

Common cause.

14. AD PARAGRAPH 3.4:

Common cause.

15. AD PARAGRAPH 3.5:

Common cause.

16. AD PARAGRAPH 3.6:

This is not correct as the process was fair.

17. AD PARAGRAPH 4.1:

Common cause.

18. AD PARAGRAPH 4.1.1:

Common cause.

19. AD PARAGRAPH 4.1.2:

Common cause.

20. AD PARAGRAPH 4.2:

The matter was investigated thoroughly by Thandile Health Risk Management and issued a report.

21. AD PARAGRAPH 4.3:

Common cause.

22. AD PARAGRAPH 4.3.1:

Common cause.

23. AD PARAGRAPH 4.3.2:

Common cause.

24. AD PARAGRAPH 4.4:

The matter was investigated thoroughly by Thandile Health Risk Management and issued a report.

25. AD PARAGRAPH 4.5 – 5.5:

This will be dealt with here. Not correct in PSA obo Fourie (Case number PSCB 244-16-17 FS), the Commissioner stated the following, not every failure on the part of the employer to comply with the collective agreement will result in a claim of right on the part of the employee. The employee still needs to show that he qualified for the relief sought, that the employer failed to comply with the agreement and in doing so prejudiced him. The Commissioner further stated that the investigation must be finalised within thirty (30) working days and it does not say that the employee should be informed within thirty (30) working days.

26. The Applicant applied for temporary incapacity leave on 29/09/2015 and that was the last time she saw a Psychiatrist. See attached (Annexure A) a final report regarding an application for temporary Incapacity Leave – short period particularly at 5.2. The Applicant received remuneration which was not due to her.

27. The period of temporary leave applied for is deemed excessive for the condition diagnosed in the absence of additional information to validate the prolonged period of recovery requested. See: Annexure A.

28. Whitcher J in POPCRU and Another v Department of Correctional Service stated the following:

“However, if the period that employer takes to decide the application exceeds 30 days set out in PILIR, I don’t see how the conditionality of the payment subjected to medical assessment harden into an entitlement after 30 days, investigation period lapses. Nor, in light of clause 7.2.22, 7.3.3.2 and note 4 of PILIR should a reasonable employee applying for additional leave assume that, should a medical assessment go against then even if delayed, they are entitled to be paid for their absence from work.

It seems to me that if the underlying medical condition which compelled an employee to seek additional sick leave, is assessed not to have warranted such leave, this must determine what happened to any payment they received while applying not the employer’s delay in attending to the application.”

29. This means that the determining factor should be whether one looks at delay regarding the response to the application or does that medical condition warrants such a Temporary Incapacity Leave. Then the reason for applying for Temporary Incapacity Leave is a medical condition and it depends on it nothing else. The delay cannot automatically render the application valid. The leave without pay against the Applicant salary was properly done as she was remunerated for the duration of her absence from work.

30. It is the Respondent’s plea that the matter should be dismissed.

APPLICANT’S REPLY:
ARGUMENTS:-

31. The Applicant notes the contents.

32. AD PARAGRAPH 4.5 – 5.5 THEREOF:

32.1 As already stated in the Applicant’s closing arguments, it is clear that the Respondent failed to comply with the ELRC Resolution 7/2001 and therefore the Applicant is severely prejudiced.

32.2 Even though the Resolution does not state that the employer must revert back to an employee who applied for Temporary Incapacity leave within thirty (30) days, every person has the right to just administrative action in terms of Section 33 of the Constitution of the Republic of South Africa 108 of 1996. Therefore one should expect that the Employer will revert back to an Employee within a reasonable period of time.

33. There is no assumption made by an employee that “should a medical assessment go against them even if delayed, they are entitled to pay for their absence from work”, the unfairness of the entire process is clear.

34. The Respondent should have informed the Applicant within thirty (30) days that her TIL has been declined with an option to either return to work or to apply for leave without pay in terms of Section 21 of Chapter J of the Employment of Educators Act 76 of 1998 PAM. If this had happened the Applicant would have most probably applied one of the two options and the Applicant would not have been prejudiced.

35. Due to the fact that Respondent erred by not informed the Applicant within thirty (30) days that her TIL has been declined, the Applicant is severely prejudiced seeing that she is put in a situation where she has to pay back a huge amount of money without choice which would not have been the case if the Respondent applied ELRC Resolution 7/2001 correctly. To the contrary, one must also ask the question: what should the Applicant have done? If an educator is booked off for more than thirty (30) days one cannot expect an educator to return to work (still being ill) for in case she received feedback “one day” stating that her TIL has been declined.

36. To be informed by the employer more than a year after applying for TIL that an employee’s TIL has been declined and at that late stage the employee must either register a grievance with “new medical evidence” (which is in most cases impossible to find) or has to pay back a huge amount of money, is clearly unfair.

ANALYSIS OF THE ARGUMENTS:

37. It is trite that clause 21 of Chapter J of the Employment of Educators Act 76 of 1998 (PAM) provides that the Respondent should have informed the Applicant to either return to work or to apply for leave without pay.

38. It is common cause that the Applicant could not exercise the above options as the Respondent informed her a year after she had applied for Temporary Incapacity Leave that it had been declined.

39. I agree that for an Applicant to succeed in a case similar to this one he/she must prove that notwithstanding the delay, the medical condition would have allowed the granting of further incapacity leave, if not then the Respondent would be within its right to claim back whatever monies that had been paid to an Applicant due to such Incapacity Leave having been granted and paid for. This would not amount to unfair administrative action.

40. I cannot find that the Respondent interpreted or applied the Resolution incorrectly as it would appear that from the medical documentation, the Applicant was not entitled to further Incapacity Leave.

41. It is however my view that the Applicant is not precluded from referring an unfair labour practice dispute in that had she been informed timeously that her incapacity leave would be declined then she could have exercised the option of applying for unpaid leave or returned to work.

AWARD:-

42. The Respondent did not interpret or applied Resolution 7/2001 incorrectly.

43. The Applicant’s application is accordingly dismissed without an order for costs.

JEROME MTHEMBU
ELRC PANELIST