14 September 2022 – ELRC230-22/23NW

Commissioner: D Smith
Case No.: ELRC230-22/23NW Date of Award: 12 September 2022

In the ARBITRATION between:

DIGOAMAJE, TSIKO NICHOLAS (Union / Applicant)

and

DEPARTMENT OF EDUCATION NORTH WEST (Respondent)

Union/Applicant’s representative: Mr. T Monkwe

Tel:
Telefax:
Email:

Respondent’s representative: Mr. Martin Keetile

Tel: 0183884108
Email: martink@nwpg.gov.za

DETAILS OF HEARING AND REPRESENTATION:

1. The dispute was referred to the Education Labour Relations Council (“Council”) in terms of Section 24 of the Labour Relations Act, No. 66 of 1995 (“LRA”). It was heard via online media on 25 August 2022.

2. The Applicant, Mr. Tsiko Nicholas Digoamaje (Digoamaje) was represented by Mr. T Monkwe (Monkwe). The Respondent was represented by Mr. Martin Keetile (Keetile).

3. The process was digitally recorded, and I took handwritten notes.

4. The parties agreed to submit closing argument as follows:

26 August 2022 Applicant
30 August 2022 Respondent

5. The Application submitted a 22-page bundle marked R.

ISSUE TO BE DECIDED:

6. Whether the Respondent correctly interpreted the provisions of Collective Agreement 7 of 2001 paragraph 9.4, and PAM paragraph 14.5.3.a, or not; and whether the Respondent acted fairly by not approving the sick leave within a stipulated 30 working days.

7. If I find in the positive, I must decide upon an appropriate remedy.

BACKGROUND:

8. Digoamaje applied for sick, or incapacity leave for the period 4 August to 3 September 2020. He was advised on 24 January 2022 that the application had been declined. The Respondent started making deductions of R1400.00 per month in June 2022.

REMEDY

9. Digoamaje sought the Respondent approve the incapacity leave, cease deductions and repay monies already deducted.

SURVEY OF EVIDENCE AND ARGUMENT:

10. For purposes of this award, I do not intend, to record verbatim evidence led, submissions made and or arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented in rendering this award.

11. Most of the evidence was common cause.

APPLICANT’S VERSION

12. Digoamaje testified that:

12.1. He applied for sick leave on 13 August 2020. This application was for the period 4 August 2020 to 3 September 2020.

12.2. The Respondent, in a letter dated 13 December 2021, communicated that the application had been declined. He only received the letter from the school principal on 24 January 2022.

12.3. He subsequently referred a grievance on 2 February 2022 contesting the Respondent’s decision to refuse his application for leave, A10.

12.4. The Respondent dismissed his grievance and communicated the decision on 15 March 2022.

12.5. In June 2022, the Respondent started deducting money from the applicant. To date it had deducted R2800, and the salary advice indicates that there is R33901.36 outstanding.

12.6. The Respondent failed to comply with a 30-day timeframe in terms of ELRC Resolution 7 of 2001 and PAM and therefore the unapproved leave days should be approved.

13. Monkwe submitted that:

13.1. The Respondent argued that Digoamaje used a normal sick leave application form. However, the district manager (acting on behalf of the head of department) wrote under the heading “APPLICATION FOR THE TEMPORARY INCAPACITY LEAVE, A8:

Further to your application date————————–, I wish to inform you that the Head of Department has, based on upon available information approved/not approved your application for incapacity leave for the period 2020.08.04 – 2020.09.03.

13.2. Obviously, the Respondent treated the issue as incapacity leave regardless of what form was used and, by doing so condoned it.

13.3. Soma, the health risk manager, advised the Respondent to decline the application, A9:

“We regret to inform you that your application for short period temporary incapacity leave for the period from 4 August 2020 (Tuesday) to 3 September 2020 (Thursday) has been declined.”

13.4. Soma would not have dealt with the application if it was not for incapacity leave. This is required by Chapter H of the PAM only if it is an application for incapacity leave.

13.5. When Digoamaje lodged a grievance the Respondent took it to Soma, who wrote,A12:

“Mr Digoamaje’s application for short period temporary incapacity leave of 22 days from 4 August 2020 3 September 2020 (Thursday) was previously assessed by SOMA….”

13.6. Paragraphs 9.1 to 9.3 of ELRC Resolution 7 of 2001 place an obligation on the employer to grant incapacity leave once Digoamaje exhausted his normal sick leave days, A7. All he had to do was to provide proof that a medical doctor has certified that he was incapacitated. The employer also has an obligation to request an employee to provide a second opinion. This was never done.

13.7. Digoamaje applied for incapacity leave on 13 August 2020. The Respondent only responded 17 months later, on 24 January 2022.

13.8. The Respondent did not adhere to the requirements of paragraph 9.4 of ELRC Resolution 7 of 2001, nor paragraph H.5.3.10 of PAM.

13.9. The Respondent argued that it did not grant leave with full pay. This confirms that it failed to apply paragraph 9.4 of the resolution.

13.10. The communications A12 and 13 were in response to the grievance and not the application.

13.11. The Respondent argued that incapacity leave was not granted because Digoamaje did not apply for it. However, the subsequent communications dealt with it as incapacity leave.

RESPONDENT’S VERSION

14. Keetile submitted that:

14.1. Digoamaje’s normal sick leave application form is an indication that he never applied for incapacity leave, A6.

14.2. Paragraph 9 of the Collective Agreement 7 of 2001 stipulates the requirements for granting of incapacity leave as:

“9.1 An Educator who has exhausted his or her sick leave credit in a three-year cycle and who, according to the relevant medical practitioner, requires to be absent due to incapacity that is not permanent may be granted additional sick leave with full pay. 9.2 Such a condition must have been certified in advance by the attending medical practitioner as a temporary incapacity except where conditions do not permit”.

14.3. Digoamaje failed to indicate whether his leave was due to exhausted sick leave credits warranting him additional sick leave. He did not present such condition certified in advance by the attending medical practitioner as a temporary incapacity. He, therefore, did not comply with stipulation in paragraph 5.1.2 above as no evidence has been provided in that regard. His application for leave should therefore be classified as unauthorized normal sick leave without pay.

14.4. Paragraph 9.3 of the Collective Agreement 7 of 2001 stipulates that 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.

14.5. No evidence has been provided that Digoamaje requested assistance from the Department regarding seeking second opinion. He only consulted one medical practitioner, A7. He failed to comply with the prescripts of Collective Agreement 7 of 2001with regards to incapacity leave.

14.6. Paragraph 9.4 of the Collective Agreement 7 of 2001 further states 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 conducted into the nature and extent of the incapacity. No leave with full pay was granted in this regard as this was not classified as incapacity leave.

14.7. Paragraph 9.5 of the Collective Agreement 7 of 2001 further stipulates that on the basis of medical evidence, the Head of Department may approve the granting of additional sick. Digoamaje also failed to provide satisfactory even after being requested to do so, A12, 13.

14.8. Digoamaje’s failure to apply for additional leave as stipulated disqualifies his leave application as an incapacity leave therefore not falling within the category as stated in paragraph H5.3.10 of PAM which stipulates that:

“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.

14.9. The 30-day rule as per paragraph H5.3.10 of PAM fails in this regard on the basis that the stated paragraph applies only to incapacity leave. No application form for incapacity leave was submitted, A6. The investigation conducted in this regard was to determine if Digoamaje was entitled to sick leave with pay and this not the case. This investigation should therefore not be confused with the investigation in terms of paragraph H5.3.10 of PAM.

ANALYSIS OF EVIDENCE AND ARGUMENT:

15. It seems clear that Digoamaje had exhausted his sick leave in the three-year cycle. Had he not normal sick leave would have applied. He was booked off by a medical practitioner for the period 4 August to 3 September 2020, who he consulted on 4 August 2020. He completed an application for leave of absence on 13 August, indicating ‘normal sick leave’. The form makes it clear that a different form must be used in applying for incapacity leave. However, would be expected that the Respondent would have advised that he had run out of sick leave and the correct form completed. There is no evidence of this. Throughout the protracted process reference has always been to incapacity leave.

16. The first hurdle for applying for incapacity leave, regardless of the form used is:

17. Digoamaje’s absence started on 4 August 2020. His application for normal sick leave was made on 13 August 2020. Even if he had completed the right form he did not comply with these provisions. As a school principal he would be expected to know the procedure.

18. Once an application for incapacity leave is made the Respondent is obliged, in terms of paragraph H5.3.10 of PAM, to approve or refuse it within 30 days. As this was not an application for incapacity leave the provision does not apply.

19. It is unfortunate that the Respondent took so long to act on the normal sick leave application, but the reality is that it did. Digoamaje was paid for 23 days sick leave that he did not have. The Respondent is entitled to recover the monies. The Basic Conditions of Employment Act 75 of 1996, as amended, makes provision for the employer to recover an over payment of salary provided that the deduction does not exceed 25% of the employee’s salary. What transpired after the incorrect application was made is irrelevant.

FINDING

20. Digoamaje did not apply for temporary incapacity leave. The Respondent interpreted and applied the collective agreement correctly.

AWARD

21. The matter is dismissed.

D H Smith

ELRC PANELIST
12 September 2022