11 November 2022 – ELRC326-22/23FS

Commissioner: George Georghiades
Case No.: ELRC326-22/23FS
Date of Award: 08 November 2022

In the ARBITRATION between:

SAOU obo NTSETSI, MORAMANG
(Union / Applicant)
and

FREE STATE DEPARTMENT OF EDUCATION
(Respondent)

Union/Applicant’s representative: Ms. Hester Human (SAOU)
Mobile: 078 743 9431
Email: hesterh@saou.co.za

Respondent’s representative: Mr. Solomon Moloi
Telephone: (051) 404 1770
Email: solomonmoloi168@gmail.com

DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing between SAOU obo Moramang Ntsetsi and the Free State Department of Education was held under the auspices of the Education Labour Relation Council (“ELRC”), via Zoom Meetings. The matter was set down for arbitration on 13 October 2022, the nature of the dispute being an unfair labour practice in respect of section 186(2)(a) of the Labour Relations Act 66 0f 1995 (“LRA”) relating to benefits. The arbitration hearing was conducted on 04 November 2022.
2. The proceedings were conducted in English and were manually and digitally (video and audio) recorded.
3. Both parties were present. The applicant was represented by Ms. Hester Human, SAOU official, while the respondent was represented by Mr. Solomon Moloi, Labour relations Officer of the respondent.
4. The parties exchanged their evidence bundles and confirmed and submitted their joint pre-arbitration minute, signed by both parties. The applicant’s bundle was marked as bundle “A”, while the respondent’ bundle was marked as bundle “R”.
PRELIMINARY ISSUES
5. No preliminary issues were raised by the parties.
ISSUES TO BE DECIDED
6. This matter was referred to the ELRC as an Unfair Labour Practice (ULP) dispute in terms of section 186(2)(a) of the LRA, in respect of benefits.
7. I am tasked to determine whether the respondent failed to properly investigate the nature and extent of the applicant’s incapacity within the 30 days as prescribed by the collective agreement, thereby putting the Respondent in breach of clause 9.4 of ELRC Resolution 7 of 2001 and whether the applicant is entitled to the reimbursement of monies in respect of leave periods for which his applications were declined.
8. Should relief be required, to order the appropriate relief.
9. The applicant requested that should I find in his favour, that that the respondent approve the temporary incapacity leave for the period in question and reimburse him for all monies deducted for the aforementioned period.

BACKGROUND TO THE DISPUTE
10. The Applicant, Mr. Moramang Ntsetsi is employed by the Respondent as a Department Head in Bloemfontein, earning a gross salary of R 36 038.07 per month.
11. The Applicant applied for Temporary Incapacity Leave on 25 January 2021, for the periods 25 January 2021 to 19 April 2021.
12. The period from 25 January 2021, till 15 March 2021 was approved, while the period from 16 March 2021 till 19 April 2022, was declined. This was only advised by the respondent in a letter to the applicant on 10 January 2022.
13. The Applicant claims that the Respondent failed to correctly apply the Personnel Administrative Measures (PAM), ELRC Collective Agreement 7 of 2001, Policy and Procedure on Incapacity Leave for Ill-health Retirement (PILIR) and the Determination and Directive on Leave of Absence in the Public Service, in considering (and rejecting) his application for leave.
14. The respondent disputed this, claiming that the leave applications were properly considered by the respondent and rejected on the findings of Thandile Health Risk Management and recommendations of the Head of Department, due to the applicant being able to perform adapted duties and the excessive duration of the leave period.
15. As the dispute was referred in respect of the respondent’s alleged unfair conduct, the onus to prove this, lies with the applicant.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE:
16. The ELRC Resolution 7 of 2001 deals with temporary incapacity leave, providing that:
“The Head of Department may grant a maximum of 30 consecutive working days leave with full pay during which period an investigation must be concluded into the nature and extend of the incapacity. The investigation shall be conducted in accordance with item 10(1) of Schedule 8 of the Labour Relations Act, 1995.”
17. The Policy and Procedure on Incapacity Leave and Ill-heath Retirement (PILIR) is a ministerial determination which also deals with temporary incapacity leave. Clause 6.4 of the PILIR provides that the employer, shall be responsible to process applications and complete reports within the specified time frames.
18. Clause 7.2.9 of the PILIR relating to applications for temporary incapacity leave for short periods provides that:
“The employer must within 30 working days after receipt of both the application form and the medical certificate referred to in paragraphs 7.1.4 and 7.1.5, approve or refuse temporary incapacity leave granted conditionally. In making a decision the employer must apply his/her mind to the medical certificate (with or without describing the nature and extent of the incapacity) contemplated in 7.1.5.2, medical information/records contemplated in 7.1.5.4 (if the employee consented to disclosure) the Health Risk Manager’s advice, the additional information supplied by the employee in paragraph 7.1.5.3 (if any) and all other relevant information available to the Employer, and based thereon approve or refuse the temporary incapacity leave granted conditionally, on conditions that the Employer may determine, e.g. to return to work, etc.”
19. The PILIR makes the 30-day requirement peremptory by substituting the word “may” in the aforementioned collective agreement with the word “must”. Clause 7.3.5.1(e) of the PILIR is identical to the aforementioned clause, except that it relates to application for temporary incapacity leave for long periods.
20. Clause 5.3.1.0 of the Personnel Administrative Measures, 1996 (PAM), has the same operation as the abovementioned clauses and reads as follows:
“The HoD must, within 30 working days after receipt of both the application form and medical certificate, approve or refuse the temporary incapacity leave granted conditionally. In making a decision, the HoD must apply his/her mind to the medical certificate (with or without describing the nature and extent of the illness or injury) medical information/records (if the employee consented to disclosure), the Health Risk Manager’s advice, the information as supplied by the educator and all other relevant information available to the HoD and based thereon approve or refuse the temporary incapacity leave granted conditionally, on conditions that the HoD may determine, e.g. return to work etc..”
As is the case in the PILIR, in the PAM the word “may” also hardens to “must.”
21. Clauses 5,3 and 5.4 of PILIR provide that the mission of PILIR is adopt a scientific approach to health risk management based on sound medical, actuarial and legal principles and to involve the various stakeholders in the health risk management processes and structures.
22. In doing so, the Respondent’s HOD is required to have applied its mind and when faced with two conflicting versions (that of the applicant and that of the Health Risk Manager), the HOD was required to conduct an investigation, which it failed to do, only relying on the report of the Health Risk Manager.
23. The Respondent’s, Thandile Health Risk management, is not a member of the Board of Medical Practitioners and is not authorised to prescribe, but merely provide an advisory role.
24. The HOD is not a qualified medical specialist and as such, was not qualified, authorised or competent to have taken a decision without having investigated the matter further, buy requesting a second medical opinion, as required by PAM and PILIR.
25. The collective agreement, read with PILIR and the PAM, requires that an investigation be carried out by the employer and an outcome/report be given by the employee within 30 days of the employer receiving the application for temporary incapacity leave.
26. The period of temporary incapacity leave in question was applied for on 25 January 2021. The outcome for the period applied for is dated 10 January 2022 and is 320 days late.
27. The Applicant’s reports were based on the medical evidence which the applicant obtained from his treating doctor, while the Respondent’s letter of response makes no mention of the of the respondent assessing the Applicant in terms of item 10(1) of Schedule 8 of the Labour Relations Act.
28. The Respondent therefore failed to properly investigate the nature and extent of the Applicant’s incapacity and issue an outcome or report within the 30 days as prescribed by the collective agreement. The respondent is in breach of ELRC Resolution 7 of 2001.
29. Despite having only responded to the applicant’s application 350 days later, in doing so, measured against the provisions of PAM and PILIR. the respondent in its letter dated 10 January 2022, failed to provide an alternative plan insofar as adaptive measures and further failed to provide proper and reasonable reasons as to why the period applied for, was excessive.
30. The respondent’s decision to refuse the temporary incapacity leave is invalid and of no effect. The respondent used its discretion to approve or refuse temporary incapacity leave arbitrarily and unreasonably. The deduction of monies from the applicant’s salary for the periods 16 March 2021 to 19 April 2021, is therefore based on an invalid decision.
31. The temporary incapacity leave for the period for which leave was applied, should be granted and the monies deducted for the period in question, amounting to R 2 799.00, should be paid back to the applicant.
The applicant closed its case.

THE RESPONDENT`S CASE:
32. Being subjected to approval, capacity leave is conditional, with the HOD being required to approve or deny such leave discretionally.
33. Mr. Ntsetsi’s case was referred to Thandile Health Risk Management, which is made up of a group of medical practitioners, who considered the applicant’s application and the reports of his medical doctor, inferring that the respondent had applied its mind in line with the requirements of PAM and PILIR.
34. At section 7.2.4 of PILIR, the purpose of the assessment of an application received, is described, being (1) to determine the validity of the application, (2) determine the need for ongoing temporary incapacity leave, (3) determine the appropriate duration of the leave, (4) provide preliminary advise on the management of the condition and (5) advise a full health assessment, if required.
35. The HOD considered all the letters of the applicant’s doctors, in coming to a final decision.
36. The respondent conceded that the applicant applied for temporary incapacity leave on 25 January 2021 and that the letter of response to the applicant in respect of his application, was only provided to him on 10 January 2022, being 350 days later.
ANALYSIS OF EVIDENCE AND ARGUMENTS
37. I considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
38. I am required to establish whether the respondent failed to investigate the nature and extent of the applicant’s incapacity within the 30 days as prescribed by the collective agreement. Should I find in this regard, it follows that the respondent is in breach of clause 9.4 of ELRC Resolution 7 of 2001, read with clause 6.4, clause 7.2.9 and clause 7.3.5.1(e) of PILIR, and further read with clause H.5.3.10 of the PAM.
39. I am further required to determine whether, as a result of the respondent’s failure to conduct the investigation within the stipulated time frame (the breach), the applicant was prejudiced.
40. Based on the outcome of my findings, I am required to establish whether the applicant is entitled to be reimbursed for the leave period for which his applied leave, was declined.
41. Insofar as the respondent’s compliance with the prescription of the collective agreement, I am required to consider two aspects. These are (1) whether the respondent conducted some form of investigation or assessment insofar as the applicant’s incapacity and (2) whether the respondent did so within the prescribed 30-day period.
42. I will firstly deal with the adherence to the 30-day time period. That the respondent failed to comply to the 30-day prescribed time frame is not in doubt. Despite the submissions of the applicant to this effect (notwithstanding the correctness of the date of application), the respondent, by its own admission conceded that it failed to approve or refuse temporary incapacity leave granted conditionally, within the prescribed period.
43. Insofar as whether the respondent investigated or assessed the applicant’s incapacity, both the applicant and the respondent confirmed that a report was provided to the respondent by Thandile Health Risk Management Services, which was based on the medical evidence which the applicant obtained from his treating doctor.
44. It then follows that in order for the respondent to have provided a letter of response to the applicant, despite being 320 days late; despite not complying with the provisions of PAM and PILIR; and despite the assessment having been based only on the applicant’s submitted medical reports and that of Thandile Health Risk Management, the respondent did in fact, conduct an assessment (underlining my own emphasis).
45. The applicant’s contention is correct in that the respondent’s letter of response makes no mention of the details of the respondent’s actual assessment of the applicant in terms of item 10(1) of Schedule 8 of the Labour Relations Act and that despite the respondent having conducted an assessment (through Thandile Health Risk Management), I am persuaded that the respondent’s HOD failed to comply with the provisions of PAM and PILIR by failing to refer the conflicting versions for further assessment by a medical practitioner.
46. This leads me to the next inquiry, being whether the applicant was prejudiced by the actions and/or omissions of the respondent in para 43 to 45 above. Clause 7.2.9 of the PILIR clothes the employer with the discretion to approve or refuse temporary incapacity leave granted conditionally. Similarly, Clause 5.3.1.0 of the Personnel Administrative Measures, 1996 (PAM), also prescribes that the Head of Department (HoD) must approve or refuse temporary incapacity leave granted conditionally.
47. This suggests that the employer is within its right to refuse temporary incapacity leave granted conditionally and in doing so, my view is that if the application for leave is refused and submitted to the applicant within the 30-day period, the employee is not prejudiced.
48. However, the prejudice towards the applicant is effected by the lateness of the outcome report and not by the decision of the respondent to refuse the leave. In isolation and within the prescribed time frames, ordinarily, no prejudice would have been suffered by the applicant. The respondent’s failure to have complied with the prescribed time frames prompted or effected the real prejudice suffered in this regard, by the applicant.
49. I am guided by Cele J in the PSA and Another v PSCBC and Others (Gouvea) matter, that a late refusal of temporary incapacity leave offends the prohibition on retrospectivity. The court makes it clear that an employee suffers prejudice through an outcome that is issued outside the 30-day period where a temporary incapacity leave application is concerned (underlining my emphasis).
50. This view was further supported in Department of Roads and Transport v JC Robertson, PSCBC and Others by Judge Lallie, in supporting the reasons for the decision arrived at by Cele J, namely that the report on the investigation of the nature and extent of the temporary incapacity of an employee, having so applied for such leave, should be investigated and the report be given within the thirty days as stipulated in PILIR.
51. In conclusion, and after having considered all of the aforesaid, I find on a balance of probabilities that as a result of the respondent’s failure to investigate the nature and extent of the applicant’s incapacity within the 30 days as prescribed by the collective agreement, the Respondent is in breach of clause 9.4 of ELRC Resolution 7 of 2001, read with clause 6.4, clause 7.2.9, clause 7.3.5.1(e) of PILIR, and further read with clause H.5.3.10 of the PAM.
52. As a result of this breach, as the applicant was substantially prejudiced, the applicant should be reimbursed for the deduction of the leave period for which he applied, in the amount of R 2 799.00 and that no further deductions should be actioned by the respondent.
Award
53. The respondent, the Free State Department of Education, is ordered to approve the temporary incapacity leave applied for by the Applicant, Mr. Moramang Ntsetsi, for the period 16 March 2021 – 19 April 2021.
54. The Respondent is ordered to reimburse the applicant all monies deducted for the aforementioned period, amounting to R 2 799.00 (two thousand seven hundred and ninety-nine rand).
55. The Respondent is ordered to cancel all further deductions relating to the leave period 16 March 2021 – 19 April 2021.
56. The approval of the said leave and the subsequent reimbursement of monies deducted for the relevant period is to be made by no later than 31 November 2022.