In the matter between

Jeffrey Jaftha Applicant

and

Department of Education: Eastern Cape Respondent

ARBITRATOR: AW Howden

HEARD: 31 May 2017

DATE OF AWARD: 13 June 2017

SUMMARY: Labour Relations Act 66 of 1995 – Section 24(2) [24(5)] – interpretation and application of collective agreement – ELRC Resolution 7 of 2001/ PILIR/PAM – whether the Department of Education – Eastern Cape applied the provisions of the Collective Agreement correctly, in that the Department of Education had failed to inform the educator, within the 30 day period prescribed, whether an application for temporary incapacity leave (TIL) had been approved or refused.

ARBITRATION AWARD

DETAILS OF PROCEEDINGS AND REPRESENTATION

1. This matter was Set Down for Arbitration on 31 May 2017 at the offices of the Department of Education – Eastern Cape in Port Elizabeth.
2. The Applicant, Mr J Jaftha, was present and represented himself.
3. The Respondent, Department of Education – Eastern Cape, was represented by Mr C Pillay (Assistant- Director: Labour Relations).

ISSUES IN DISPUTE

4. I am required to determine whether the Department of Education – Eastern Cape applied the provisions of ELRC Resolution 7 of 2001/ PILIR/PAM correctly, in that the Department of Education had failed to inform the Applicant, within the 30-day period prescribed, whether his applications for temporary incapacity leave (TIL) had been approved or refused.

BACKGROUND TO THE DISPUTE

5. The Applicant was a Post Level 1 Educator at Arcadia Primary School in Port Elizabeth prior to going on retirement in April 2017.

6. In the last two years of his employment with the Respondent, the Applicant was booked off on sick leave on a number of occasions and applied for temporary incapacity leave, however only after a period, ranging between 6 months to 11 months, was he informed by the Respondent that his TIL applications were refused.

7. The Applicant has requested that if the outcome of the matter goes in his favour, the periods of sick leave declined by the Respondent be converted to approved temporary incapacity leave, and the money deducted from his salary be repaid.

SURVEY OF EVIDENCE AND ARGUMENT

8. It is common cause between the parties:

8.1 That the Applicant was employed as a Post Level 1 Educator at Arcadia Primary School.
8.2 That the Applicant retired on 30 April 2017.
8.3 That the Applicant was booked off sick for the periods:
Period (1) 13 May 2014 to 16 May 2014 (4 days)
Period (2) 25 August 2014 to 23 September 2014 (30 days)
Period (3) 25 September 2014 to 23 October 2014 (29 days)
Period (4) 25 November 2014 to 12 December 2014 (18 days)
Period (5) 19 January 2015 to 20 February 2015 (33 days)
Period (6) 18 July 2016 to 21 July 2016 (35 days)
Period (7) 23 August 2016 1 September 2016 (10 days)
(The periods above include Saturdays/Sundays and public holidays)
8.4. That Applications for Temporary Incapacity Leave were submitted by the Applicant for the Periods (2) (3) (4) and (5) above.
8.5. That Applications for Temporary Incapacity Leave were referred to the Health Risk Manager and were compliant of all the requirements for the Periods (2) (3) (4) and (5) above.
8.6. That the Applicant was informed via a letter dated 2 September 2015 that his Applications for Temporary Incapacity Leave were declined for the Periods (2) (3) (4) and (5) above. (Period (2) was approx 11 months late, Period (3) was approx 10 months late, Period (4) was approx 8 ½ months late and Period (5) was approx 6 months late.)
8.7 That the parties agree that the notification for declining the Applications for Temporary Incapacity Leave was late in terms of the 30 days referred to in the PILIR.
8.8 That the dates indicated in the Periods (2) (3) (4) and (5) above, have been deducted from the Applicant’s salary as unpaid leave. The Applicant did not respond to the Department’s letter where he was given a choice to have unpaid leave applied or the days taken from capped leave, so the Department applied it as unpaid leave.
8.9 That the Periods (1) (6) and (7) above, were treated differently as Applications for Temporary Incapacity Leave were not received within the prescribed 5 day period and processed as unpaid leave.
8.10 That the Periods (1) (6) and (7) above, do not fall within the ambit of Collective Agreement: Interpretation or Application, as they were dealt with under standard leave procedures and the Applicant would need to invoke civil proceedings to deal with these periods.

9. At the outset, I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.

The Applicant’s Submissions

10. The Applicant stated that the late notification of refusal for Applications for Temporary Incapacity Leave cannot be taken lightly, especially if taking into account the effect that it has on a person, the family and a person’s health.

11. The Applicant stated the PILIR is very clear, the Department has 30 days in which to approve or refuse an Application for Temporary Incapacity Leave, and the Department has not complied.

12. The Applicant read the following from a document (Marked A) for the record:

– He had great prospects of success because the respondent unlawfully deducted from his salary. He submitted his applications in accordance with the Policy and Procedure on Incapacity Leave and Ill Health Retirement (PILIR) dated November 2005 which is determined in terms of Section 3 of the Public Service Act. The respondent failed to comply with the provisions of PILIR and as a result the salary deductions are unlawful.

13. The Applicant proceeded to read the following from a document (Marked B) for the record:

– The Department only started corresponding with the Applicant, with regards to his Applications for Temporary Incapacity Leave, one year after the initial Application.
– The Applicant on 3 March 2016 filed a grievance for the denial of his applications. The Applicant was of the opinion that the referral to the denial of his application would in turn relate to the unlawful deductions.
– The Department failed to respond to the aforesaid grievance despite full medical certificates that have been submitted from time to time.
– The Applicant was unaware that he had to lodge a grievance for every application that was denied and further every deduction as same was ongoing and further related to numerous periods and amounts.
– The Respondents belated declination of the Applicant’s applications for temporary incapacity leave is unlawful, unfair and constitutes an unfair labour practice.
– The applications for temporary incapacity leave were denied by the Respondent where they should have been approved, the Respondent failed to approve same and do so timeously.
– The declination of the Applicant’s application for temporary incapacity leave has caused the Applicant to suffer an extensive loss.
– The belated declination by the Respondent in the circumstances of this matter is contrary to the agreement particular to the manner in which such leave requests ought to be processed.
– The unilateral declination of the application for temporary incapacity leave takes place in circumstances where the Applicant was denied the audi alteram partem rule.
– The Respondent in this regard gave effect to the declination of the applications for temporary incapacity leave prior to giving the Applicant the opportunity to be heard relative to any issues that concerned the Respondent particular to the applications.
– The grievance issued by the Applicant was ignored by the Respondent.
– With effect from August 2015 and ongoing the Respondent has given effect to a unilateral and unlawful deduction from the Applicant’s salary, thereby given effect to a unilateral alteration of the terms and conditions of the Applicant’s employment in that the Applicant now receives less than his agreed monthly salary.
– This unfair and unlawful unilateral deduction from the Applicant’s salary is an ongoing dispute.
– Relief sought: A reversal of the declination of the Applicant’s application for temporary incapacity leave and repayment to the Applicant of all the monies deducted from the Applicant’s salary.

The Respondent’s Submissions

14. The Respondent confirmed that the basis of the Applicant’s argument was that he was not notified within the 30 day period prescribed of the refusal of his Applications for Temporary Incapacity Leave.

15. The Respondent stated that late notification was not a justifiable reason and referred to the comments of a recent judgement in the Labour Court where Judge Witcher J, addressed this issue and stated “a late decision does not harden to a salary entitlement”.

16. The Respondent further referred to various clauses within the PILIR which refers to the discretion of the Department when it comes to the approval of Applications for Temporary Incapacity Leave and the conditional approval of such applications for a period of 30 days.

17. The Respondent further confirmed Section 38 of the Public Service Act 1994, allowed for the deduction of provisionally paid sick leave, which is what happened in this matter.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

18. Paragraph 7.2.9.1 (Short term) of the PILIR states: 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.

19. If interpreting this clause literally, which is what I have done, then it is clear the Respondent has not complied with the Resolution/PILIR/PAM.

20. It is also common cause that the Respondent notified the Applicant about the refusal of his Applications for Temporary Incapacity Leave, outside of the 30 day period prescribed.

21. Until very recently the thinking of Commissioners have been guided by the matter of PSA and Another v PSCBC and Others (D751/09) [2013] ZALCD 3, where the Judge, Cele J, in dealing with the failure of an Employer to render a decision regarding the approval or disapproval of TIL within 30 day period, commented as follows after a TIL application was declined by the Department “This report sought to have a retrospective effect. The consequences of a retrospective effect is that it amounts to an unreasonable and arbitrary exercise of a discretion with unfair consequences to an employee. Nowhere in clause 7.5 of Resolution 7 of 2000 (PSCBC), is there a suggestion that the employer may not grant further sick leave after the lapse of a 30-day period. On the contrary, as investigations shall be in accordance with Item 10 (1) of Schedule 8 of the Act, a further sick leave period may be granted to the employee.”

22. During the proceedings the Respondent referred us to, Police and Prisons Civil Rights Union and another v Department of Correctional Services and another (2017) 38 ILJ 964 (LC), Witcher J (24 – 26) held:
“[24] I am aware of the judgment of my learned brother, Cele J, in Public Service Association of SA & another v PSCBC, Gouvea & others. In this he finds that where an application for temporary incapacity leave is declined outside the 30-day investigation period, any deduction from an employee’s salary for the period (outside the 30-day period) that he or she was awaiting a decision from the employer would offend the prohibition against retrospectivity. Cele J states that ‘the consequence of a retrospective effect is that it amounts to an unreasonable and arbitrary exercise of a discretion with unfair consequences to an employee’. This has been taken to mean that ‘employees cannot be subjected to leave without pay/monthly deductions from their salary (in order to recover salary paid, where an application for TIL/IHR is declined for a period they have been off work sick) or stoppage of salary unless the application is declined within 30 days or unless they have been given a date to return for work and have failed to do so.
[25] The decision in Gouvea flowed from an analysis of clause 7.5.1(b) of PSCBC Resolution 7 of 2000, which is identical in operation to clause 7.3.5 (and 7.2.5) in PILIR. PILIR, a ministerial determination, indeed amplifies the earlier PSCBC Resolution 7 of 2000.
[26] In my view, this interpretation of PILIR is not sustainable in the light of the fact that an employee applying for temporary incapacity leave has not been granted it yet. A late determination of an employee’s application for additional leave, as lamentable as this is, and a subsequent instruction to pay back money to which the employee was not entitled does not produce a decision that retrospectively deprives the employee of a right to the payment in question. An employee seeking additional sick leave in terms of PILIR has conditionally been paid a salary while his or her application for additional leave is considered. This consideration should be over within 30 days. However, if the period the employer takes to decide the application exceeds the 30 days set out in PILIR, I do not see how the conditionality of payments to an employee, subject to a medical assessment, hardens into an entitlement after the 30-day investigation period lapses. Nor, in the light of clause 7.2.2.2, 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 him or her, even if delayed, he or she is entitled to be paid for his or her absence from work. It seems to me that, if the underlying medical condition which prompted an employee to seek additional sick leave, is assessed not to have warranted such leave, this fact must determine what happens to any payments he or she received while applying and not the employer’s delay in attending to the application.”
23. Subsequent to Judge Witcher’s Labour Court Ruling however, further case law has been handed down by the Labour Court, namely; Department of Roads and Transport and JC Robertson and PSCBC and others (PR40/14) [2017] ZALCPE where Judge Lallie J, held that:
[7] “The arbitrator’s interpretation of clause 7.5.1. (b) of Resolution 7/2000 which is based on the decision on PSA HC Gouvea (supra) cannot be faulted. When exercising the discretion to grant or refuse TIL, the applicant was enjoined by Resolution 7/2000 to take into account provisions 10 (1) of Schedule 8 to the Labour Relations Act 66 of 1995 as amended (the LRA). The interpretation the arbitrator gave to clause 7.5.1. (b) is consistent with the letter and spirit of the LRA. His decision is not based only on giving a peremptory meaning to the word “shall” in clause 7.5.1 (b) of Resolution 7/2000. He therefore conducted the correct enquiry in the correct manner and reached a reasonable decision”.
24. I am inclined to agree with the thinking of Judge Cele J, which has now been supported by Judge Lallie J, as the Applicant has been seriously prejudiced by the late refusal of his Applications for Temporary Incapacity Leave. In my opinion even more so when you see the word “shall” in Resolution 7/2000 has been changed to “must” in the PILIR.

25. The Respondent highlighted the fact that throughout the PILIR, wording is used confirming the fact that the additional days are at the discretion of the Employer and the leave granted in the interim is conditional. It is recognised that the Respondent has a discretion, however the Respondent had to exercise that discretion properly, namely by complying with paragraph 7.2.9.1 (Short term) of the PILIR which states: The Employer must (emphasis added) 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.

26. It is my finding that the Department of Education has not applied the provisions of ELRC Resolution 7 of 2001/ PILAR/PAM correctly, in that the Department of Education failed to inform the Applicant, within the 30-day period prescribed, whether his Applications for Temporary Incapacity Leave had been approved or refused. I further find that based on the evidence before me and the guidance given by Judges Cele J, and Lallie J, the Applicant is entitled to paid temporary incapacity leave.

AWARD

27. The Respondent, Department of Education – Eastern Cape, has not applied the provisions of ELRC Resolution 7 of 2001/PILIR/PAM correctly, in that the Department of Education failed to inform the Applicant, J Jaftha, within the 30-day
28. period prescribed, whether his Applications for Temporary Incapacity Leave had been approved or refused.

29. The Applicant, J Jaftha, is entitled to paid temporary incapacity leave for the periods, 25 August 2014 to 23 September 2014; 25 September 2014 to 23 October 2014; 25 November 2014 to 12 December 2014 and 19 January 2015 to 20 February 2015.

30. The Respondent, Department of Education – Eastern Cape, is hereby instructed to reverse the unpaid leave deducted from the Applicant, J Jafhta, and pay out the days specified in paragraph 28 above to the Applicant, J Jaftha, within 30 days of becoming aware of this award.

31. There is no order as to costs.

Panellist: AW Howden
ELRC