IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY

Case No: ELRC820-24/25FS

In the matter between:

SADTU obo XABA PULENG MAGDELINE Applicant

And

FREE STATE DEPARTMENT OF EDUCATION Respondent

BEFORE : COMMISSIONER TEBOGO MORAJANE

HEARING DATE : 17 MARCH 2026

DELIVERED : 15 APRIL 2026

DEFAULT AWARD

Introduction

1. This is a default award in a matter that was referred by SADTU, acting on behalf of its member, Ms Puleng Magdeline Xaba, who is the applicant in this matter. The respondent is Free State Department of Education. The matter was set down for arbitration on 17 March 2026, at the Department of Education, in Welkom.
2. The applicant was present and represented by Mr SP Matlebe, the SADTU union official, whilst the respondent was not in attendance. I was satisfied that sufficient notice was given to the respondent. I also contacted the respondent’s representative, Mr S Moloi to determine his whereabouts, to no success. As such, after I afforded the respondent, a grace period of 45 minutes, I commenced with the arbitration, in the absence of the respondent.
3. The parties concluded the pre-arbitration minutes on 18 March 2025. On the date of conclusion of the pre-arbitration minutes, the applicant was in attendance and represented by Mr SP Matlebe and the respondent was represented by Ms S Moloi. There were a number of postponements, prior to the set down date of 17 March 2026. On 17 March 2026, there was still no formal explanation tendered by the respondent to me or to Council, for their non-attendance, except for a telephonic communication by Mr S Moloi, on 16 March 2026, to the effect that he will not attend the matter on 17 March 2026, as he was in the process of being transferred to another unit. However, no-arrangements for the substitution of Mr Moloi with another representative were made and as alluded above, no formal explanation for non-attendance or a postponement request was before me or Council. Thus, as alluded to above, I was satisfied to proceed in the absence of the respondent, after affording them, a grace period of 45 minutes.
4. The arbitration proceedings were digitally recorded and I took hand written notes. The services of an interpreter were not required.

Issues to be decided

5. The applicant referred an unfair labour practice dispute, challenging fairness of the procedure that the respondent followed in declining her short-term leave application. The dispute was referred on 21 November 2024.
6. As per clauses 5.1-5.3 of the pre-arbitration minutes concluded by the parties on 18 March 2025, I am required to determine whether the respondent, followed the correct procedure, when it declined the applicant’s application for the short-term incapacity leave. The applicant challenged only the procedural fairness and not the substantive fairness.
7. If I were to find that the respondent did not act procedurally fair, then I am required to find that the decision of the respondent to decline the short-term incapacity leave of the applicant, be reversed. I am also required to find that the respondent’s decision to deduct an amount of R18 363, in monthly deductions of R611.23, from the applicant’s salary be reversed and that the amounts that the respondent has deducted be refunded.
8. However, if I find that the respondent acted procedurally fair, then Council must dismiss the applicant’s case.

Background to the dispute

9. The applicant, at the time of the matter, was employed as a Grade 12 Teacher at the Tshepo Themba Finishing School in Welkom. Her date of employment was 1 January 2018. Ms Xaba applied for a Short-Term Incapacity Leave, which was to commence from 6 March 2024 until 20 March 2024. The short-term leave was for the period of eleven (11) working days. The leave application form was submitted through the principal of Tshepo Themba Finishing School, on 6 February 2024. The leave form was submitted together with the medical certificate and medical information that was completed by the doctor.
10. The short-term incapacity leave was declined, by way of a letter dated 2 May 2024, which was from the District Director at the Lejweleputswa Education District, Ms P Zonke. The applicant received the letter dated 2 May 2024, on 31 May 2025. The reason for the decline of the leave application was stated as vague diagnosis and the application lacking all relevant information pertaining to the Applicant’s condition. The letter indicated that the Applicant may lodge a grievance and include new and material medical evidence. The letter also required the applicant to express her consent to the deduction of unpaid leave no later than 24 May 2025.
11. On 4 June 2024, the applicant opted not to consent to the deduction of unpaid leave money and lodged a grievance. She included in her grievance form a motivational letter from Dr Naser Muhammad, the treating doctor. The applicant’s short-term incapacity leave as grieved was declined in a letter dated 31 July 2024, which the applicant received on 21 August 2024. The reason for declining was that no new information was furnished, to indicate complications which validated the longer period of recovery. As such, the leave period of additional eleven working days on top of the twenty-two leave days the applicant took from her sick leave days, were regarded as excessive. Thus, deductions of the amount of R611.00 from the applicant’s salary commenced. However, the deduction commenced on 20 June 2024, prior to the outcome of the grievance, which was responded to on 31 July 2024, by way of a letter that the applicant received on 31 August 2024.

Survey of evidence and arguments

12. I have adopted the inquisitorial approach and conducted the proceedings with minimum legal formalities in order to determine the dispute fairly and quickly (see Impala Platinum Ltd v Jansen and others [2017] 4 BLLR 325 (LAC) at para 24).
13. I only summarised the evidence which I regarded to be relevant to the dispute and which I considered in order to reach my decision. No evidence was tendered by or on behalf of the Respondent.

Documentary evidence submitted

14. The parties, during the pre-arbitration meeting, submitted the following documentary evidence, which were admitted into evidence, for what they purported to be:

14.1. The applicant submitted Bundle A1, which comprised of 11 pages. Bundle A1 comprised of, amongst other, the medical report, the doctors’ motivational letter and the grievance form. The applicant also submitted Bundle A2, which was the PILIR policy, which comprised of 28 pages.

14.2. The respondent submitted Bundle R, which comprised of 14 pages. Bundle R comprised of, inter alia, the Health Risk Assessment and the declined outcome

APPLICANTS’ EVIDENCE AND ARGUMENT:
Puleng Magdeline Xaba, testified under oath as follows

15. She went through an operation on 3 Feb 2024. Dr Muhammad gave her sick leave to recover, which amounted to 33 working days. She had 22 leave days, from her sick leave cycle, and thus only required 11 short-term incapacity leave days. She submitted the temporary incapacity leave application forms to the then principal, Ms Majola, on 6 February 2024. Her temporary leave application was responded to on 31 May 2024, by the District Director. Her temporary leave application was declined; however, she was informed that she can lodge a grievance and submit more information. She then submitted her grievance and a motivational letter from her doctor on 4 June 2024.
16. The temporary incapacity leave application, that was declined, was for the period of 6 March to 20 March 2024 (11 days). On 20 June 2024, before she had received a response to her grievance and without consenting to a deduction from her salary, she saw a deduction of R611.23. The responded did not communicate deduction as she did not consent to such deduction. She then received the second letter on 21 August 2024, as per page 6 of Bundle A1, which also declined her leave application as no new information was submitted.
17. The respondent failed to comply with the Policy and Procedure on Incapacity Leave and Ill-Health Reitrement (the PILIR policy), which required the applicant to be notified of the rejection of her application, within 30 days of her application. She had not received any information until she received the letter on 31 May 2024.

Closing arguments

18. The applicant argued the following in closing, that the respondent failed to comply with the PILIR policy, which required the respondent to inform the applicant, within 30 days of submission of the temporary incapacity leave, on whether the application was to be approved or not. Had the respondent communicated as required, the applicant would have returned to work, subject to adjustment being made and alternative suitable arrangement of work being made available. The applicant took leave as per the doctor’s instruction and to allow her sufficient time to heal. Thus, the respondent failed to act as per the PILIR policy and acted procedurally unfair. Thus, the recourse in the form of the repayment of the amount deducted, was sought.

Analysis of the evidence
Section 138 (7) of the LRA requires me to provide brief reasons for the award and therefore, any non-reference in my analysis, to any evidence tendered, does not imply that such evidence was not been considered in making my decision

19. As alluded to above, the applicant only challenged the procedure that the respondent followed in declining the approval of the short-term leave application. The respondent’s reason for declining the short-term leave, as applied for, was not in dispute.
20. In an unfair labour practice dispute, the onus that the act complained of, in this matter, declining of the short-term incapacity leave (temporary incapacity leave), was unfair, rested on the applicant, who had to prove that the conduct of the respondent was unfair (see Department of Justice v CCMA & Others [2004] 4 BLLR 297 (LAC) 321). The applicant, thus had a duty to prove that the act complained of, fell within the unfair labour practice definition and that such conduct was unfair.
21. Section 186(2)(a) provides that an unfair labour practice is an act or omission that arises between the employer and the employee, involving an unfair conduct by the employer relating to the promotion, demotion, probation, or training of an employee or relating to the provision of benefits to an employee. In Apollo Tyres South Africa (Pty) Ltd v CCMA & Others [2013] 5 BLLR 434 (LAC) the Labour Appeal Court interpreted the term “benefits” to include the right or the entitlement to which the employee is entitled ex contractu or ex lege, as well as an advantage or privilege which has been granted to an employee in terms of a policy or a practice, subject to the employer’s discretion. Temporary incapacity leave is additional leave days granted conditionally, at the employer’s discretion.
22. In the matter before me, as per the pre-arbitration minutes agreed to by parties, the act of the respondent, which the applicant alleged was unfair was only the procedure that the respondent followed, when the short-term incapacity leave was declined. The applicant did not challenge the reasons which led to the decline of the short-term incapacity leave. As agreed, to by parties, as per the pre-arbitration minutes, the reason for the decline of the additional eleven (11) days, was that no new medical information was submitted, to indicate complications and thus validated a sick leave period in excess of 22 days. Thus, the additional eleven (11) days were not approved.
23. The applicant’s uncontested evidence, was that the respondent failed to act in accordance with the provisions of the Policy and Procedure on Incapacity Leave and Ill-Health Reitrement (the PILIR policy), when her temporary incapacity leave application was declined. The applicant’s case further was that the PILIR policy required the respondent to respond to her application within 30 days of its submission. In the applicant’s case, she was operated on 3 February 2024 and submitted her leave application on 6 February 2024. Her leave application was for 33 working days, whereupon 22 days were utilised from the applicant’s sick leave cycle and 11 days applied for, were to be utilised as short-term incapacity leave, for the period of 6 March 2024 to 20 March 2024.
24. Temporary incapacity leave is regulated in term of clause 7 of the Policy and Procedure on Incapacity Leave and Ill-Health Reitrement of November 2005 (the PILIR policy), which must be read together with Chapter H: 5 of the Personnel Administrative Measures of 2022 (PAM), which regulates temporary incapacity leave. In terms of clause 7.2.2.2 of the PILIR policy read together with clause H5.3.8. of the PAM, the respondent is required to respond to the temporary incapcity leave application (short-term) within 5 working days of receipt of such an application, by conditionally granting the employee a maximum of 30 consecutive working days temporary incapcity leave, with full pay, subject to the outcome of the investigation into the nature and extent of the employee’s illness. Additionally, clause 7.2.2.3 of the PILIR read together with clause H5.3.8.2 requires the employer or Head of Department (HoD) to refer the application together with the medical supporting documents, to the Health Risk Manager for assessment and advice. In terms of clause 7.2.9 of the PILIR policy, read together with clause H5.3.10 of the PAM, the employer (HoD) must within 30 working days after the receipt of both the application and medical certificates, approve or refuse the temporary incapcity leave granted conditionally. The HoD is required to apply its mind to the medical certificate, the medical records and the advise of the Health Risk manager, in making the decision, to grant or to refuse the short term leave applied for.
25. Furthermore, clause 7.2.10 of the PILIR policy read together with clause H5.3.13.2 of the PAM, provides that, if the employer (HoD) refuses the temporary leave that was granted conditionally, the employee must be notified in writing, about the refusal and within 5 working days of the employee being notified of the refusal, the employee must notify the employer of whether or not the period of the conditionally granted leave, be covered by annual leave or unpaid leave. If the employee fails to notify the employer of his/her choice, the employer will cover the conditionally granted leave days as unpaid leave. The employee, who is not happy with the employer’s decision, may lodge a grievance
26. It is the applicant’s case that the respondent should have notified her of the declined temporary incapcity leave, within 30 days of her application. As such, the applicant would have returned to work, without utilising the 11 leave days and would have requested adjustments to be made with alternative suitable work, to be afforded to her. It is further, the applicant’s case that the respondent, by failing to respond to her application, as prescribed, acted procedurally unfair.
27. As alluded to above, the PILIR policy and PAM requires the respondent, within 5 working days of receipt of the application, to conditionally approve the short-term incapacity leave, for a maximum period of 30 consecutive days and to refer the application with supporting documents to the Health Risk Manager, for assessment and advice. The respondent is then required, within 30 working days after receipt of both the application, medical certificate, medical information, medical records supplied by the educator and the advice of the Health Risk Manager, approve or refuse the incapacity leave granted. It must be noted that, the evidence of the respondent was not tendered. However, despite non-tendering of oral evidence, the respondent submitted Bundle R. Page 5 to 10 of Bundle R, which comprised of a report from Thandile Health Risk Management, dated 4 March 2024, which as per clause 5.2 thereof, recommended that the period of leave applied for was excessive, as no information validating such a prolonged period was provided and that the employee should have been able to perform on her own or with adapted duties. It is not clear when the respondent received the report of the Health Risk Management. However, the applicant’s leave was applied on 6 February 2024 and the report of the Health Risk Manager was dated 4 March 2024. The PILIR read together with PAM, required the respondent, within 30 working days of receipt of the medical reports and the Health Risk Manager’s advice to approve or refuse the leave.
28. It must be noted that, although, both PAM and PILIR, require the advice of the Health Risk manager to be considered by the employer, in making the decision to approve or decline the conditionally approved leave, the Head of Department (HoD) or employer has 30 working days and the first 5 working days of conditional approval, to either approve or decline the application for TIL. It must also be noted that the 30 days period are working day, which excludes weekends and public holidays, which fell within the period. Thus, March 21 (Human Rights Day), March 29 (Good Friday), April 1 (Family Day) and April 27 (Freedom Day) must be excluded in calculating the 30 working days. The five (5) first working days of conditional approval must also be taken into account. The 30-working day period, if calculated after 5 days of the short term being conditionally granted, would have rested on 27 March 2024. The applicant’s short-term incapacity leave period was for the period of 6 March to 20 March 2024. Thus, the respondent’s compliance with the PILIR and PAM provisions, would not have allowed the applicant, an option of not taking the short-term incapacity leave, as alleged.
29. Thus, although the receipt of the decline on 31 May 2024, with a letter dated 2 May 2024, may on the basis of paragraph 28 above, suggest that the respondent failed to communicate the decline of the short-term incapacity leave, within the prescribed 30 working days, from the receipt of the application and medical certificates, after the short term leave, was conditionally approved within the first 5 working days, the period for the applicant’s short-term incapacity leave was from 6 March 2024 to 20 March 2024. Thus, the 30 working days, within which the respondent is mandated to make a decision would have been after 20 March 2024. Thus, the Applicant would not have excised a choice of not utilising the leave as alleged. Thus, the claim made by the Applicant, that, had the Respondent communicated the outcome of her TIL within the required 30 days, she would have returned to work, subject to suitable accommodation, is without merit, as the 30 days period, as alluded to above, would have rested on 27 March 2024, a period after she had returned from her temporary incapacity leave. The drafters of PAM and PILIR anticipated that sick leave as per the doctor’s report would have been utilised when the conditionally approved short term incapacity leave is either approved or declined. Thus, the options given to the employee, as per the PILIR or PAM provisions, if the leave is declined, is not for the employee to decide not to take the leave, but to either consent that the leave be treated as either annual leave or as unpaid leave. The applicant opted not to consent to the deduction of money, in her grievance form, but did not indicate on whether the 11 days be treated as annual or unpaid leave. The respondent on the basis of lack of choice, treated the days as unpaid leave days. It must be noted that a dispute of deduction of a salary without one’s consent, was not a dispute that was before me, thus such was not addressed.
30. On the basis of the uncontested applicant’s evidence, the applicant failed to prove that the respondent conduct was procedurally unfair. The applicant failed to demonstrate that a different outcome would have resulted, had the respondent, responded to the leave, as per the PILIR and PAM, namely, declined the temporary incapacity leave within the 30 working days, as such response would have rested on the period outside the 20 March 2024.
31. I find that the respondent, the Free State Department of Education, in declining the applicant’s application, did not act procedurally unfair, towards the applicant, Puleng Magdeline Xaba, and as such did not commit an unfair labour practice.
32. The Applicant’s case is thus, dismissed.

Award

ELRC Arbitrator/ Panelist