12 June 2026 – ELRC1061-25/26KZN

IN THE MATTER BETWEEN:

CHARLES MPHO ELEPHANT Applicant

And

DEPARTMENT OF HIGHER EDUCATION AND TRAINING Respondent
(uMgungundlovu TVET College)

Case Number: ELRC1061-25/26KZN
Date of Arbitration award: 12 June 2026

ELRC Arbitrator: T. Mtolo

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

This is the arbitration award in the dispute between Charles Mpho Elephant, the Applicant, and the Department of Higher Education and Training, uMgungundlovu TVET College, the Respondent, referred to the Education Labour Relations Council under case number ELRC1061-25/26KZN.
The arbitration was conducted over several sittings held at the uMgungundlovu TVET College on 1 and 2 April 2026, 11 May 2026 and 21 May 2026. Closing arguments were submitted on 28 May 2026, whereafter the matter was reserved for award.
The Applicant appeared in person. The Respondent was represented by Ms Karisha Chutoree, its labour relations official. Interpretation services were rendered by Ms Mbali Thabile Mazibuko. The proceedings were digitally recorded.
The parties referred to a Respondent’s bundle (Bundle A), an Applicant’s bundle (Bundle B), the pre-arbitration minute (Bundle C) and a supplementary Applicant’s bundle (Bundle D). The arbitration process, comprising opening statements, evidence in chief, cross-examination, re-examination and closing arguments, was explained to the parties and ground rules were established.
On 1 April 2026 the matter was postponed to 2 April 2026 to afford the Applicant, a lay person, an opportunity to secure representation, on condition that the matter would proceed whether or not he was represented. On 2 April 2026 the matter was further adjourned to 11 May 2026 to allow the Applicant to source additional documents from the Respondent’s human resources office. The Applicant ultimately elected to proceed in person.
BACKGROUND
The Applicant has been employed by the Respondent as a lecturer in civil engineering at the Edendale campus since May 2008.
The dispute concerns the Respondent’s refusal of the Applicant’s application for temporary incapacity leave for the period 7 to 20 March 2024, and the subsequent conversion of that period to leave without pay, which resulted in deductions from the Applicant’s salary.
The Applicant referred an unfair labour practice dispute relating to the provision of a benefit in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995.
ISSUE TO BE DECIDED
I am required to determine whether the Respondent committed an unfair labour practice relating to the provision of a benefit by refusing the Applicant’s application for temporary incapacity leave for the period 7 to 20 March 2024 and converting that period to leave without pay; and, if so, to determine the appropriate relief.
SURVEY OF EVIDENCE AND ARGUMENTS
What follows is a summary of the material evidence and submissions. It is not a verbatim record of all that was placed before me, and the omission of any matter does not mean that it was not considered.
Applicant’s opening statement
The Applicant stated that he works under the college at the Edendale campus, and that the dispute concerns the Respondent declining his temporary incapacity leave for 7 to 20 March 2024 and deducting from his salary at a time when he was medically unfit. He submitted that he had informed his employer and furnished all required documents, yet his application was declined without proper consideration and without affording him a fair opportunity to address concerns regarding his medical condition or his documentation.
He contended that the resulting salary deduction caused him financial prejudice and was both unfair and inconsistent with fair labour practice. He undertook to demonstrate that his absence was legitimate and medically supported, that he had complied with all relevant procedures, and that the Respondent had failed to act reasonably in rejecting his application. He requested that the dispute be determined in his favour and that appropriate relief be granted, including reimbursement of the deducted salary.
Respondent’s opening statement
The Respondent stated that it would demonstrate that the decision to decline the temporary incapacity leave was both procedurally fair and substantively justified. The period in dispute was 7 to 20 March 2024. It submitted that temporary incapacity leave is not an entitlement or an automatic benefit but a conditional benefit, subject to a proper and timeous application, the submission of credible evidence, the nature of the incapacity, and the extent to which the incapacity prevents the employee from performing his duties.
The Respondent submitted that, on the recommendation of SOMA, the medical notes did not substantiate incapacity as required by policy. It would show that it had followed a reasonable process, that the deficiencies in the application had been pointed out and the Applicant afforded an opportunity to provide additional information, and that the outcome had been communicated to him in writing with reasons. It denied any arbitrary decision-making, discrimination or deviation from established procedure, and contended that the Applicant had exhausted his normal sick leave, that the application had been assessed in accordance with PILIR, and that the medical evidence did not substantiate the extent, duration or severity of the incapacity. It requested that the unfair labour practice claim be dismissed.
Applicant’s evidence
The Applicant: Charles Mpho Elephant testified under oath. He confirmed his employment as a civil engineering lecturer at the Edendale campus since May 2008. He explained that the dispute relates to his short temporary incapacity leave for the period 7 to 20 March 2024, which was declined by SOMA and the employer, with the result that his salary was deducted (Bundle B, pages 1 to 3).
He referred to his temporary incapacity leave application (page 3), reflecting his personal details, the incapacity leave period of 7 to 20 March 2024, and ten incapacity leave days applied for. At page 4 he referred to the confidential details of his illness and injury, including the medical codes recorded by the doctor, and testified that at L4 to L5 there was a mild disc bulge with focal asymmetry at the right foraminal location with mild foraminal stenosis.
He referred to a medical certificate from Dr E.Z. Mathonsi, a neurosurgeon (page 2), reflecting that he had been examined on 15 March 2024 and declared unfit for work from 10 to 20 March 2024, with a provisional diagnosis of lumbar and intervertebral disc disorders with myelopathy, and an additional comment recording known chronic lumbar disc disease.
He testified that he had submitted the medical certificates covering the period of his absence to human resources, and that he believed SOMA had not followed a fair process because he had submitted everything required of him. He referred to an email from Ms Thuli Nxele of human resources dated 21 July 2025 attaching the outcome of his first grievance (page 14), and to the grievance form dated 21 July 2025 (page 15), in which he recorded that he had developed flu, consulted a doctor on 8 March 2024, consulted the neurosurgeon on 9 March 2024, and was admitted to hospital until 15 March 2024.
He referred to further grievance documentation (page 16) recording that he had undergone an MRI scan on 12 March 2024 which found a mild disc bulge with focal asymmetry and right foraminal stenosis; to the MRI results (pages 17 and 18) recording the findings at L4 and L5, the scan having been performed on 12 March 2024 at St Anne’s hospital where he was admitted; to X-rays (pages 20 to 23) reflecting screws inserted in his spine and the disc bulge impinging on the nerves; to records from the Spine Care Centre reflecting treatment from 20 January 2025 to 30 April 2025 (page 24); to a GEMS authorisation dated 6 December 2024 for rehabilitation for chronic back pain (page 25); and to further MRI results dated 2 April 2025 (pages 28 to 33). He testified that all of these documents had formed part of the grievance lodged in July 2025.
He testified that, as recorded in the pre-arbitration minute, the fact in dispute was whether the decline amounted to an unfair labour practice. His position was that he had been in hospital fighting for his life and had presented everything required of him by human resources. As to the relief sought (pre-arbitration minute, page 2), he asked that the Respondent reconsider his application by appointing its own medical practitioner to evaluate him before deciding on the incapacity, and that the deductions be stopped pending an independent assessment by the Respondent’s appointed specialist. He asked that his dispute not be dismissed pending the finalisation of such an assessment.
At the resumed hearing on 11 May 2026 the Applicant produced his payslips and a PERSAL printout reflecting the deductions, together with hospital and medical records. He testified that the deductions reflected on his payslips as leave without pay, with a leave without pay amount of R11 550.11 being recovered at R1 000.00 per month from December 2025, such that by May 2026 six months of deductions had been effected. He further identified a separate deduction of R550.00, first appearing in March 2026, the source of which he did not understand and which did not appear in any of the explanatory correspondence.
He referred to an email from Ms Nxele to Karisha, on which he had been copied (page 10), recording that the amount deducted was R1 000.00, that the deduction had commenced on 1 December 2025, and that the overall amount was R11 550.11. He testified that when he telephoned human resources on or about 8 or 9 April 2026 to enquire about the R550.00 deduction he was treated rudely and had not been warned in advance of the deductions so as to enable him to lodge a grievance.
He testified that he had been admitted to St Anne’s hospital from 6 to 13 March 2026 under the care of his specialist, Dr Devan Gounder, who had referred him to a neurosurgeon, Dr Chitae, for treatment of muscle spasms and severe pain associated with disc compression, for which he had been given an epidural as a temporary measure. He referred to a prescription from Dr Gounder (page 12) and to an MRI scan dated 7 March 2026 reflecting a broad-based disc bulge at L5/S1 compressing the nerve (pages 13 to 22) and testified that every MRI scan from August 2021 to date reflected the same underlying condition.
Applicant’s evidence under cross-examination
Under cross-examination the Applicant was referred to Bundle D, page 4, reflecting the leave without pay deductions. He agreed that the second leave without pay entry, for 26 to 27 October 2023, was a period of which he had not been made aware but maintained that it nonetheless affected his salary.
He confirmed that he had applied for temporary incapacity leave on previous occasions prior to March 2024. He testified that he was not familiar with the PILIR policy, as he is not in human resources, and that he had become aware of the incapacity leave process through his first surgery, when Ms Nxele had emailed him the relevant forms. He was referred to the application (Bundle A, page 12) and agreed that the form clarified what was to be completed and that Ms Nxele had explained how to complete it.
When asked whether he had read the form before signing it, he testified that he had not read the entire form, as Ms Nxele had told him what to complete and what supporting documentation to provide and had assisted him in completing it. He was referred to item 4 of the form, dealing with the application being subject to investigation and the leave-of-absence determination, and acknowledged its content.
He was asked whether he accepted that an application for short-term temporary incapacity leave is an application rather than an extension of leave. He responded that he could not walk, was indisposed and immobile, and that whether or not the application was granted would not change his situation.
He testified that he had become aware that the Department appoints an independent body for such applications only when his attorneys had become involved. He was referred to the form (page 13) reflecting that the doctor had completed item 2.1 and that he was required to complete item 2.2, dealing with how the illness or injury affected the performance of his duties, and was asked why he had not done so. He testified that the handwriting at item 2.1 was his own, that he had been assisted by Ms Nxele, and that he had not completed item 2.2 because he had never completed it in his previous applications from 2021, all of which had been in the same form and all of which had been granted. He gave a similar explanation in respect of items 2.3 and 2.4, dealing with medication and side-effects, stating that the medication was in any event reflected in the prescriptions attached.
He was referred to the outcome letter (page 38) recording that the application had been referred to SOMA, which he identified as a panel of state doctors. He confirmed that the outcome letter set out the reasons for the refusal, namely that there was insufficient evidence of symptoms, management and functional limitations during the period, and insufficient information to suggest that he was incapacitated to the extent of being unable to perform his occupational functions or that he required intensive management.
He testified that, being dissatisfied, he had lodged a grievance and attached the documents furnished by his doctors, including the MRI scan of 12 March 2024 (page 43) and the letter from Dr Mathonsi (page 45) certifying his attendance and unfitness for work from 10 to 20 March 2024, with a provisional diagnosis of lumbar and intervertebral disc disorders and an additional comment that the condition was chronic, dating from August 2021. He confirmed that the grievance, with attachments running from pages 40 to 66, had been submitted on 21 July 2025, and that, in response to Ms Nxele’s request for further information explaining why he could not perform his duties, he had submitted the MRI scan of 2 April 2025.
Respondent’s evidence
The Respondent called Ms Thembisile Zondo, a Senior Personnel Officer at Head Office responsible for PILIR matters, who testified under oath. She explained that an application is first received and checked to verify that all documentation is attached and complete; once it is found to be free of errors it is processed on the system and forwarded to the Health Risk Manager. On receipt of the outcome a letter is drafted advising the employee of the outcome. The decision is taken from the recommendation of the Health Risk Manager. The Respondent then waits five working days and either converts the declined days to annual leave, if available, or to leave without pay, if the application is declined.
She referred to the policy and procedure governing temporary incapacity leave (page 69) and testified that the Health Risk Manager comprises a board of qualified doctors competent to deal with any diagnosis presented. She referred to clause 7.1.1 (page 75), providing that temporary incapacity leave is not additional sick leave but leave granted at the discretion of the employer, meaning that it is not guaranteed but is subject to a process and an outcome. She referred to clause 7.1.4, dealing with the requirements for submission, and testified that the Applicant had not adhered to these in full: although the application and medical certificates had been received, the information in the submission was insufficient, and one of the requirements is that the application be submitted in full and with sufficient proof.
She testified (page 79) that lecturers qualify only for 36 days of normal sick leave over a three-year cycle and do not have annual leave but qualify for five days’ family responsibility leave. Because the Applicant had no annual leave, the declined temporary incapacity leave was converted to leave without pay. Decisions are communicated through the human resources office at the relevant college and by email to the employee.
She explained that a resubmission arises where an applicant is dissatisfied with the outcome and applies to be reassessed through a further application, and that an independent assessment, while not compulsory, is conducted through the Health Risk Manager or a direct supervisor to ascertain whether an employee can still perform certain duties, the onus resting on the employee to prove that he cannot.
Respondent’s evidence under cross-examination
Under cross-examination Ms Zondo testified that, where an employee has been ill for a long period, the Respondent advises the employee to apply for early ill-health retirement through the PILIR process, to be assessed by the Health Risk Manager. As to employees who have not been workshopped or trained on the temporary incapacity leave procedures, she testified that such an employee is given a second chance through a resubmission opportunity, and that it is the duty of the human resources officer at the specific college to workshop and train the employee before a resubmission is made.
When the Applicant put to her that his case was different because he had been liaising with human resources telephonically, and that employees needed to be workshopped, Ms Zondo testified that she was unable to comment, as Head Office relies on the college and its human resources office to deal with and communicate with the employee. When questioned on the 36 days’ leave and the completion of the incapacity leave form, she testified that she did not know much about those procedures.
When the Applicant testified that he had submitted all the documents required for the disputed period, as he had for other periods, Ms Zondo responded that the Respondent did not dispute that he had a condition that had been ongoing for years, but that for the particular period in dispute it did not understand what had limited him from coming to work and performing his duties, and that the medical condition did not show why he could not perform his duties, which was why other periods had been granted but this one had not.
When the Applicant testified that he had been admitted to hospital during the period and could not perform his duties, Ms Zondo responded that, although a doctor’s letter confirming admission had been received, the Respondent could not ascertain why he had been booked off and admitted, what the treatment plan was, or whether any surgery had been undergone, and that there was insufficient evidence of what was happening during the period of admission.
In re-examination Ms Zondo testified that it is the applicant’s responsibility to go through the temporary incapacity leave document before signing it, and that the recommendation of the Health Risk Manager is the Respondent’s final decision because the Respondent’s officials are not doctors. The Respondent thereafter closed its case.
Closing arguments
The parties submitted closing arguments on or before 28 May 2026. The Applicant maintained that his absence had been legitimate and medically supported, that he had submitted all the documentation required of him, and that the refusal and the resulting deductions were unfair, and he sought reimbursement of the amounts deducted and a halting of the deductions pending an independent assessment. The Respondent maintained that the decision had been both procedurally and substantively fair, that temporary incapacity leave is a conditional benefit, that the medical evidence did not substantiate the extent of the incapacity, and that the claim should be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENT
Section 186(2)(a) of the Labour Relations Act 66 of 1995 defines an unfair labour practice as any unfair act or omission that arises between an employer and an employee involving, amongst others, unfair conduct by the employer relating to the provision of benefits to an employee. It is settled that temporary incapacity leave under the Policy and Procedure on Incapacity Leave and Ill-Health Retirement (PILIR) constitutes a benefit within the meaning of this section. In Apollo Tyres South Africa (Pty) Ltd v CCMA and others (2013) 34 ILJ 1120 (LAC) the Labour Appeal Court held that the term benefit includes an advantage to which an employee is entitled under a contract, law or policy, as well as an advantage granted in terms of a policy or practice subject to the employer’s discretion. Where the benefit is discretionary, the enquiry is whether the employer exercised its discretion unfairly; that is, whether the decision was arbitrary, capricious, irrational, taken in bad faith, or based on a wrong principle or a failure to apply the mind.
The onus of establishing the unfair labour practice rests on the Applicant, and within that, the onus of placing cogent medical evidence of incapacity before the employer rests on the employee claiming the benefit.
As to the incomplete items on the application form, it is correct that the Applicant signed the PILIR documents, and a signatory is ordinarily taken to be bound by what he signs. The evidence, however, was that he completed and signed the application in the same manner as his previous applications dating back to 2021, with the assistance of the human resources officer, and that none had previously been rejected. That version was not disputed by the Respondent, which further conceded that it does not formally train its employees on the PILIR policy and relies on campus human resources officers to assist applicants. This is therefore not a case of a signatory later seeking to contest the contents of what he signed; it is a case of an employee following the institution’s own established practice. While the duty to submit a properly completed application remains the employee’s, the Respondent had accepted the same method of completion over several years and conceded that employees were not formally trained on the policy. In those circumstances, the incomplete items cannot fairly justify refusing the substantiated part of the claim.
That finding does not mean that the human resources officer provided no assistance. The Respondent produced an email from Ms Thulisile Nxele requesting further evidence and substantiation for the disputed period. I accept the Respondent’s evidence that the human resources officer assisted the Applicant to the extent that she could.
The period for which temporary incapacity leave was sought spans 7 to 20 March 2024, comprising 10 working days, and the medical evidence requires that it be considered in its component parts. For 7 and 8 March 2024 the Applicant’s evidence was that he consulted a general practitioner for flu and was booked off for those two days. The medical certificate covering those dates is, however, entirely silent as to the nature of the condition and the reasons why the Applicant could not perform his duties. It is a bare certificate, not a medical report setting out a diagnosis or prognosis. The Applicant treated this period as ordinary sick leave, but his sick leave entitlement was already exhausted, and once an employee claims temporary incapacity leave under PILIR the period claimed requires a meaningful level of medical substantiation. A bare certificate recording no more than that the employee was seen and booked off does not discharge that onus. The period 7 to 8 March 2024 is accordingly not substantiated. The position is starker still for 9 March 2024, which is covered by no medical certificate at all, although, falling on a Saturday, it carries no monetary consequence. The refusal of temporary incapacity leave in respect of 7 to 9 March 2024 cannot be faulted, and to that extent the Respondent’s decision was neither irrational nor unfair.
The period 10 to 20 March 2024 stands on an entirely different footing. The Applicant was admitted to hospital from 10 to 15 March 2024, during which admission he underwent an MRI scan on 12 March 2024, on 15 March 2024 underwent examination by a Neurologist and his treating specialist’s certificate, which records a provisional diagnosis, declares him unfit for duty from 10 to 20 March 2024, covering both the admission and the recovery period following his discharge. He further furnished the MRI reports on pages 17 and 18. I accept that certificate. The hospitalisation was, moreover, the Applicant’s consistent version throughout the proceedings. He testified to it under oath and was cross-examined at length, yet it was never challenged in cross-examination, nor was it denied when the Respondent’s own witness was confronted with the same version. It was placed in dispute for the first time only in the Respondent’s closing arguments. The rule is well established that a party who intends to dispute a witness’s evidence must put its contrary version to that witness so that it can be answered (Small v Smith 1954 (3) SA 434 (SWA); President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC)). Closing argument is not evidence; it is argument upon the evidence as it stands, and a dispute raised only after the record has closed cannot displace sworn testimony that went unchallenged when it could have been tested. The evidence of the admission accordingly stands uncontroverted, and I accept it. A person who is a hospital in-patient undergoing diagnostic imaging, and who is thereafter certified unfit by his treating specialist, cannot on any rational view attend at his workplace and perform his duties as a lecturer. SOMA’s conclusion that there was insufficient evidence that the Applicant was incapacitated to the extent of being unable to perform his occupational functions cannot be reconciled with this record insofar as it concerns 10 to 20 March 2024. In respect of that period the discretion was exercised on a wrong premise and without proper regard to the evidence, and the refusal was unfair.
The total leave without pay raised against the Applicant is R11 550.11 in respect of 10 working days, yielding a daily rate of R1 155.01. The unsubstantiated portion comprises the 2 working days of 7 and 8 March 2024, in the amount of R2 310.02, which the Leave Without Pay stands.
The substantiated portion comprises the remaining 8 working days within 10 to 20 March 2024, in the amount of R9 240.09, which falls to be reversed. Monthly recoveries of R1 000.00 commenced on 1 December 2025, and six such recoveries have been made to date, totalling R6 000.00. As the amount of R2 310.02 was properly treated as Leave Without Pay, the Applicant is entitled to payment of the excess amount of R3 689.98, and no further salary recoveries may be made.
The Respondent committed an unfair labour practice relating to the provision of benefits in terms of section 186(2)(a) of the LRA by refusing the Applicant’s application for temporary incapacity leave in respect of the period 10 to 20 March 2024. The refusal in respect of 7 to 9 March 2024 was not unfair, and the claim in respect of those days is dismissed.

AWARD

The Respondent, the Department of Higher Education and Training (uMgungundlovu TVET College), committed an unfair labour practice relating to the provision of a benefit in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 against the Applicant (Elephant Mpho Charles).
The refusal of the Applicant’s temporary incapacity leave application for 10 to 20 March 2024, and the decision to convert that period to unpaid leave, are set aside. The Respondent is directed to cease forthwith all deductions from the Applicant’s salary in respect of the period 10 to 20 March 2025.
The Leave Without Pay may stand only in respect of the 2 working days of 7 and 8 March 2024, in the amount of R2 310.02.
The Respondent is directed to cease all further monthly recoveries from the Applicant’s salary with immediate effect and to pay the Applicant the amount of R3 689.98 by no later than 25 June 2026.
There is no order as to costs.