16 March 2026 -ELRC941-25/26WC

Panelist: Sally-Jean Pabst
Case No.: ELRC941-25/26WC
Date of Award: 16 March 2026

In the ARBITRATION between:

MR MOEGAMAT A KARRIEM
(Union / Applicant)

and

WESTERN CAPE EDUCATION DEPARTMENT
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

This dispute was referred to the Education Labour Relations Council (the ELRC) in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (the LRA) – an alleged unfair labour practice relating to benefits.
The arbitration was conducted virtually, via Microsoft Teams, on 3 March 2026. The parties did not require a language interpreter, and the proceedings were digitally recorded.
The Applicant, Mr Moegamat Karriem, was present and represented by his SADTU union official, Mr Tonisi. The Respondent, the Western Cape Education Department, was represented by Ms Lauren Randall.
The parties each submitted into evidence a bundle of documents they respectively relied upon, to which all was agreed between the parties as being what it purports to be. The parties submitted verbal closing arguments at the conclusion of the arbitration.
BACKGROUND
The parties agree that Mr Karriem is the principal of Talfalah Primary School in Cape Town, in the employ of the Respondent for the past 39 years.
Further that the Applicant was off sick for 3 days – 25, 26 and 27 June 2025 – and that in terms of exhausted statutory sick leave the Respondent deducted from the Applicant’s pay the amount of R7,587.76 in terms of remuneration for the 3 days.
ISSUE TO BE DECIDED
I must determine whether the Applicant is entitled to the benefit of the TIL (temporary incapacity leave) policy for 3 days’ salaries deducted in lieu of sick leave taken after statutory entitlement had been exhausted.
In relief, the Applicant wishes for the deduction of R7,587.76 to be reversed in terms of the benefit he claims, this being 3 days’ salary which had been deducted in terms of unpaid sick leave imposed.
SURVEY OF EVIDENCE AND ARGUMENT
Below is a summary of only the relevant evidence I found noteworthy in hearing this matter and does not reflect all of the evidence and arguments heard and considered in reaching my decision on this matter.
Applicant’s Evidence
The Applicant, Mr Moegamat Asharaf Karriem, testified under oath that he relies on the TIL policy of the Respondent in terms whereof he may be remunerated for sick leave upon application – this after statutory entitlement had been depleted.
The Applicant explained that he received a letter on 11 August 2025 alerting him that he needs to complete the attached application for the TIL benefit for the period of 26 to 27 June 2025 during which he had been off sick, this in order to avoid leave without pay being implemented.
The Applicant explained that he immediately completed the form, then had his doctor complete the section required to be completed by his medical practitioner, and then on 26 August 2025 he sent it to his Circuit Manager to complete the section required to be completed by his Circuit Manager. However, the Circuit Manager took too long to complete that section, resulting in leave without pay being implemented on 11 September 2025 – the letter informing him of this evidenced.
During cross examination Mr Karriem explained that he had been in the position of school principal for 21 years, and although for himself he had never before completed a TIL application with its Annexure A, he in fact assisted in this process many times for subordinates’ applications.
The Applicant submitted that he is knows all the applicable temporary leave prescripts of the TIL policy, the PILLAR policy, and the PAM document. He has received all the regular circulars, as he is the school principal. He is fully aware of, and fully understands, all leave measures and applicable required timeframes for temporary incapacity leave applications. The Applicant conceded that he knew that the policy he relies upon states clearly that he himself, as the applicant for the TIL benefit, is the only person ultimately responsible for applying correctly and in time for this benefit but retorted that until he was reminded via the letter on 11 August 2025, he had forgotten to apply for the benefit.
He had been hospitalised some months before and had been prescribed strong medication which he had to continue to take. He saw the ‘reminder’ on 11 August 2025 as an invitation to apply, which he did immediately. But because the Circuit Manager did not complete the one section timeously, on 11 September 2025 leave without pay was implemented. The Applicant added that, although at all relevant times he had access to the TIL application forms, he believes it was not his fault, because between 27 June 2025 and 11 August 2025 he had forgotten because he was on strong medication. Then, after 11 August 2025, he had no fault whatsoever in the delay, because his Circuit Manager neglected to complete a required section of the application form timeously.
It was put to the Applicant that, after he returned from the 3 days’ sick absence on 27 June 2025, in terms of the policy he relies on he had 5 working days to complete his application, and thereafter another 10 working days grace period. Furthermore, that the 3-week school holiday from 1 to 21 July 2025 was not included as it was not technically ‘work days’, which even afforded the Applicant the advantage of an extra 3 weeks’ grace. That from the start of the term on 22 July 2025 he had until 4 August 2025 to apply, but after he had not, he was reminded even on 11 August 2025, but the Respondent heard nothing back from him regarding whether he intends – or is in the process of – applying. For this reason, on 11 September 2025 the notice letter was issued that leave without pay is being implemented. The Applicant responded to this, stating “It is unreasonable that the Respondent considers the time before 11 August 2025 as my fault.” The Applicant conceded that, during the period 11 August 2025 to 11 September 2025, he did not make any contact with the writer of the 11 August 2025-letter to alert that he is busy with the application, nor to alert the writer that there is a delay by the Circuit Manager to complete his section of the form.
The Applicant was questioned regarding his depletion of statutory entitled sick leave and conceded that he utilised all of his statutory entitled sick leave between January and March 2025 when he was hospitalised and had an operation. He received payslips alerting him to the depletion of his sick leave, but he forgot. He agrees he utilised 36 days – all accumulated paid sick leave he was entitled to – when he had the operation and was hospitalised between 30 January 2025 and 20 March 2025.
The Applicant explained that, although he returned to full school duties from the end of March 2025, he had to take strong medication post his operation and relied heavily on his support staff at school in performing his duties. Then, after he got the flu at the end of June 2025, and because he was on strong medication, he forgot to apply until he was reminded to do so on 11 August 2025 via the letter. He immediately started the application, but a month was not enough time because the Circuit Manager held up the process. He was also overseas with a school tour in September, to which his secretary alerted him to the letter regarding the required TIL application that was not submitted. He was not even in the country at that time.
Respondent’s Evidence
The Respondent’s witness, Ms Vuyokazi Matewane, testified under oath that, after having exhausted all his statutory sick leave, the Applicant took 3 days’ sick leave. That they had been due to process the Applicant’s application, with a backlog, they sent him a reminder on 11 August 2025 – the letter in evidence.
Then on 11 September 2025 the witness wrote the rejection letter because “we heard nothing at all from the Applicant regarding his application”. The witness disputes the Applicant’s contention that the letter on 11 August 2025 was ‘condonation’ of the Applicant’s late application – rather a courtesy in terms of their admitted backlog in processing applications, they sent him a reminder and waited a month before imposing the leave without pay deduction. Ms Matewane confirmed that her office did not receive an application from the Applicant within the timeframe prescribed by the policy. Further that the Applicant, in terms of his monthly payslip alerting him to not having any paid sick leave left, knew that he had to apply in terms of the TIL policy. He knows the policy – he facilitated many TIL applications as school principal and regularly receives Circulars and annexed application forms as amended from time to time, informing and updating knowledge and practice regarding TIL. Further that the Applicant as school principal was solely responsible for submitting a compliant application, and within the required timeframe as prescribed by the TIL policy.
During cross examination the witness confirmed that the letter dated 11 August 2025 reminding the Applicant that they have not received an application was penned by Karabo Breakfast, and that although the Applicant may have sent the partially completed application form to the Circuit Manager Mr Mouton on 26 August 2025, she was not aware of this. Her office heard no news nor reply from the Applicant whatsoever after the 11 August 2025 letter and therefore proceeded to implement leave without pay exactly a month later, on 11 September 2025. She concedes the form could not be submitted without the signature of the Circuit Manager but reiterated that compliance with the timeframes in the TIL policy remains the responsibility of the Applicant, alone.
The witness denied that the Respondent was unreasonable in implementing leave without pay and disputes the Applicant’s submission that the Respondent subjected the Applicant to an unfair labour practice.
ANALYSIS OF EVIDENCE AND ARGUMENT
I have considered all of the evidence and argument lead by the parties in coming to my decision on this matter and provide my reasoning for my decision in the following paragraphs.
The Applicant is claiming an unfair labour practice by the Respondent in terms of 186(2)(a) of the LRA regarding benefits:
“(2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee…”
The LRA requires employers to treat their employees with fairness and equity in provision of benefits. The Applicant in this matter alleges that he was the victim of an unfair labour practice, and accordingly he bears the onus of proving all of the elements of his claim on a balance of probabilities.
It is common cause that the Applicant, Mr Karriem, was aware of and fully educated in the provisions of the policy which he relies upon for entitlement to the benefit of paid sick absence in excess of the usual statutory entitlement to paid sick leave. The Applicant testified that he was hospitalized, had surgery, and remained on strong post-op prescription medication for some months after he was discharged from hospital in March 2025. He relied on this to explain why he forgot to apply for the TIL benefit after his return to work – after he was off sick with influenza from 25 to 27 June 2025.
The duty of a commissioner in an unfair labour practice dispute in terms of a benefit is not to establish whether the Applicant was entitled to the benefit, but rather whether the Respondent under the circumstances prevailing unreasonably and unfairly withheld the benefit. In the case of this specific benefit the Applicant is claiming, there are specific provisions to the entitlement written into the policy. These provisions, in my view, are quite reasonable. I am also cognizant of the fact that, during the period directly after the 3 days’ influenza sick absence, there was a 3-week school holiday during which the Applicant obviously had some time to deliberate and spend some leisurely time with family – a period which the Respondent notably did not even count into the “5 work days”, and “10 extra work days” he had to apply. During this period, in my view, there was much less pressure from work, and the Applicant should have at some point at least have got his affairs in order.
The evidence from the witness Ms Matewane that their department was grappling with a backlog processing TIL applications rang true, in that a letter was directed to the Applicant on 11 August 2025 even though Mr Karriem’s time period for applying had lapsed already on 4 August 2025. This is my view because, if the Applicant had duly prepared (and maybe even sent off) his TIL application within the required time – before 4 August 2025 – but then received the 11 August 2025 letter, this letter would have been most helpful if his application had gotten lost in the mail or mislaid in an outbox. The letter would have alerted him that there is a hiccup somewhere – they never received his application – and he could have quickly re-sent it. But because he had not even started preparing the application, it was already essentially too late. For this reason I strongly disagree with the Applicant’s contention that an alert 7 days after the deadline could be construed as condonation for submitting his application as and when he is ready – whenever that might be.
If I had been the Applicant, in that exact situation, when I received the letter on 11 August 2025 I would have immediately replied to that email and disclosed my conundrum – that I have not even started my application as yet, and that I am due to travel overseas soon, which might cause a further delay. This I would have done regardless of whether a favourable reply is expected. If the Applicant Mr Karriem had been before me with such a follow-up letter, I might have considered the Respondent should maybe have considered giving him more time, in light of his erstwhile surgery, catch-up at work, and having to travel overseas with a school tour.
However, under the circumstances, the Applicant did not let the TIL department know his situation to at least give them a chance to show him the compassion he now wishes to beseech by means of an arbitration award. The Applicant remained silent and without reply to Ms Karabo Breakfast despite logically realizing on the day of 11 August 2025 that the 5 days / 10 days-extra is long since passed – that his application is already late. He should have taken the Department’s delegates into his confidence, as colleagues, and alerted them to his challenges, and at least asked them for ‘condonation’, timeously.
Although my observation was that the Applicant was in no way disingenuous, as I mentioned above it is not my place as commissioner to decide whether the Applicant should now be afforded the benefit; rather, I am tasked with looking back at what had happened, holistically including all events and circumstances which prevailed up to and including the imposition of the leave without pay-deduction, and for me to assess whether the Respondent had treated the Applicant unfairly and unreasonably withheld this benefit.
Under the circumstances, I find no fault on the part of the Respondent, and respectfully submit that the Applicant was the only author to his forfeiture of this TIL benefit.
AWARD
The Applicant Mr Moegamat Asharaf Karriem was not subjected to an unfair labour practice by the Respondent, the Western Cape Department of Education, in terms of section 186(2) of the Labour Relations Act 66 of 1995 and his claim is hereby dismissed.