ARBITRATION
AWARD

Case Number: ELRC1212-25/26EC
Date: 17 August 2026

In the matter between

Avelile Yonela Ludidi Applicant

and

Ingwe TVET College 1st Respondent

Department of Higher Education and Training 2nd Respondent

DETAILS OF HEARING AND REPRESENTATION

1. This arbitration was held at Ingwe TVET College offices in Mount Frere on 27 March 2026, 14 May 2026, and 23 July 2026.
2. Ms Avelile Yonela Ludidi (applicant) was in attendance in all the sessions and was represented by a PSA official, Mr Zigqibo Kahla. Ingwe TVET College (1st respondent) was represented by its labour relations practitioner, Mr Thozamile Stanely Mabovula. Department of Higher Education and Training (2nd respondent) indicated on record that it would not be sending any representative and that its interests would be represented by Mr Mabovula.
3. The dispute is about unfair labour practice related to benefit, in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (LRA) pertaining applicant’s IQMS for 2025, which would have been due to her on 30 November 2025. The applicant also seeks, in terms of ELRC Rules 7.2.2 69.1 and 69.2 to have the money deducted from her salary, after her application for temporal incapacity leave was unfairly not considered and approved. She regards the deductions as not having been made in line with section 34(1) of Basic Conditions of Employment Act 75 of 1997 (BCEA).
4. The proceedings were digitally recorded.
5. On the last day of the arbitration hearing parties agreed to submit written closing arguments and they both submitted in line with the agreed submission time frame, which was 31 July 2026. I have taken these heads of argument into consideration in penning this award
   ISSUE TO BE DECIDED
6. I am required to determine whether unfair labour practice relating to benefit was committed when the 1st respondent did not pay her pay progression for IQMS for 2025. I am also required to determine whether the deductions from the applicant’s salary, when her temporal incapacity leave application was allegedly not considered and approved, were not done in line with section 34 of the BCEA. Should unfair labour practice be proven and deductions from the applicant’s salary be proven to have been made contrary to the law I will issue appropriate relief.
   BACKGROUND TO THE ISSUE
7. The applicant is in the 1st and 2nd respondent’s employ as a lecturer (post level 1) for Mount Fletcher Campus with effect from 01 September 2017. She is earning a gross salary of R31 304.00 per month (R375 648.00 per annum).
8. She seeks to be paid her IQMS pay progression for 2025 financial year, which would have been due to her on 30 November 2025. The applicant acknowledged that for claim for IQMS pay progression for periods 2022 to 2024 she would need to file a condonation application as dispute for such periods would have been way outside section 191(1)(b) of LRA requisite 90 days when her matter was referred for conciliation on 29 January 2026.
9. The deducted amounts from her salary, which the applicant seeks to be declared as against the law are as follows:
   DATE OF DEDUCTION AMOUNT DEDUCTED
   15 October 2023 R1 842.46
   15 November 2023 R1 846.65
   08 December 2023 R1 855.91 (R1 231.10 + R624.81)
   15 February 2024 R1 874.44
   15 March 2024 R1 874.43 (R1 249.62 + R624.81)
   15 April 2024 R1 876.44
   15 May 2024 R1 249.62
   15 June 2024 R802.09
   15 August 2024 R1 231.10
   15 October 2024 R1 846.65
   15 November 2024 R1 846.65
   15 January 2026 R2 619.02
   Total R20 769.65
10. The relief sought by the applicant is to be compensated with 12 months’ remuneration or any other competent relief.
    SURVEY OF THE EVIDENCE AND ARGUMENTS
    Common cause
11. It is common cause that the applicant was employed and placed at 1st respondent’s Mount Fletcher Campus. She taught Project Management in NCV management programme levels 3 and 4. She also taught Management Practice levels 2 and 3.
12. She is currently reporting at 1st respondent’s Mount Frere Campus.

APPLICANT’S CASE
Applicant

13. The applicant testified that she was employed by the respondent as a lecturer and placed at Mount Fletcher Campus where she served under Campus manager, Ms Lulama Shete. In 2022 she got sick more often and would be booked off sick more often by her doctor. She would send her sick certificates to her employer for her days of absence. Her doctor (Dr O.T. Nkushubana) had at some point booked her off for 28 March to 30 April 2022 and again for 02 May to 31 August 2022 (pages 11 and 23 of applicant’s bundle A). It got to a point where her sick leave got exhausted.
14. Through the assistance of Dr Nkushubana the applicant filled her application for temporary incapacity leave (TIL) for period 03 March to 31 August 2022. She submitted this application to Mount Fletcher Campus by hand to Ms Shete and her immediate supervisor, Ms Poswa, on 07 March 2022. The supporting medical certificates and reports were submitted to the two officials via emails. The application was not considered and decided on. On 10 November 2022 after being asked about outstanding leave forms by 1st respondent’s official, Ms Poswa, the applicant mentioned to her that she was still waiting for explanation TIL she had submitted.
15. The applicant was then served with a letter (dated 27 January 2023 and authored by Human Resources Management and Development Assistant Director, Ms Manto- Mati) alerting her to the intended implementation of leave without pay for 126 days which would result in deduction from her salary. She was prompted to submit a signed liability form wherein she would be acknowledging absence without leave. On 06 February 2023 (which was less than 5 days from the date she got served with the correspondence) she sent an email wherein she disputed the information pertaining to her circumstances of absence. She sought to have the days of absence audited and explained to her, which was not done. There was a back and forth with management on the issue of her days of absence and processing of her TIL application.
16. There was another notification for implementation of leave without pay for 162 days (dated 22 June 2023 and authored by Deputy Principal: Corporate Services, Mr Mhlongo).
17. With regards to her IQMS for 2022 she asked Ms Poswa on 10 November 2022 as to why she did not sign her IQMS (page 16 of A). Ms Poswa’s reply was that the applicant would get clarity on the issue from Campus manager (Ms Shete). Mr Sibanda (SADTU official) sought audience from Ms Shete to discuss the IQMS issue and leave issues. She flatly refused to have discussions with Mr Sibanda.
18. The applicant also takes issue with 21 and 22 November 2022 days which also got to be deducted from her salary. She had attended Labour Forum meeting in Mount Frere Campus representing her union. There is proof of attendance in the attendance register for the days (page 8- 9 of A)
19. What then resulted was implementation of salary deductions as mentioned in paragraph without having been approved by the 2nd respondent’s HoD and not in line with section 34(1) of the BCEA.
20. She had submitted her TIL in line with clause 15 of Determination and Directive on Leave of Absence August 2021 Policy (Leave Policy). Instead of consideration of her application, she ended up being subjected to disciplinary proceedings on 15 August 2024. The DC hearing chairperson found no reason to pursue the charges and cautioned the 1st respondent on the manner it implemented deductions from her pay as there had been no DC hearing preceding the deductions. Shortly after her DC hearing the applicant experienced ill-treatment wherein locks from her office were changed and she wouldn’t access the office. Her then union (SADTU) was denied audience by Ms Shete to engage on applicant’s concerns and complaints. She had previously filed a grievance in 2023 June and proposed that she be allowed to report in another Campus. She pursued the request again in August 2024 and has been reporting on Mount Frere Campus from then.
    1ST RESPONDENT’S CASE
    Ms Lulama Theodora Shete
21. Ms Lulama Theodora Shete (1st respondent’s Mount Fletcher Campus manager) testified that the applicant had in 2024 sought to be placed at Mount Frere Admin Centre. She had continuously absented herself from work from 2022 and 2023. Her absenteeism was concerning as a lecturer is expected to constantly render lessons to students. Her continuous absence necessitated employment of a temporal lecturer.
22. With regards to her TIL application, her application form got submitted only in 2024. She is not well vested on the period of TIL applied for as such information is known by human resources. When the applicant’s sick leave days got finished and she was provided with TIL forms which she never submitted timeously. She only submitted them during her DC hearing in August 2024.
23. Ms Shete acknowledged that the applicant had submitted two TIL applications. On her having denied audience to the applicant and SADTU representative she denies such. She met them on 15 November 2022. It might be that they were not satisfied with her responses.
24. On the issue of 21- 22 November 2022 labour forum meeting, Ms Shete testified that the applicant had not been at work for a long time, and they were surprise to just see her in the forum. The applicant was expected to have gone to her Mount Fletcher Campus and drive to the Mount Frere with her Campus manager. Deduction for unauthorised absence was implemented because she was not regarded as having reported for work. She acknowledged that the applicant had indeed received invitation for the meeting.
25. When asked on whether the 2nd respondent’s HoD (or his delegated official) had signed anything regarding declining or approving TIL or giving a go ahead for deductions from applicant’s salary Ms Shete’s answer was that such matters are known better by human resources.
26. She acknowledged that the applicant had delivered her TIL application on 27 March 2022, and that it is possible that it was delivered to the Admin Centre. She maintained though that there were still a number of other days of absence not accounted for by the applicant.
27. On the question of whether it was correct to implement pay deductions without HoD or College principal, Ms Shete’s answer was that such matters would be better answered by human resources officials.
    Ms Cikizwa Manto- Mati
28. Ms Cikizwa Manto- Mati (1st respondent’s Human Resources Management and Development Assistant Director stationed in Mount Frere Admin Centre) testified that she recalls that towards end 2022 she received copies of attendance registers from Ms Shete, who complained about the applicant’s prolonged absence from work. Upon receipt of attendance registers in January 2023, she initiated the process of writing a letter to the applicant informing her of intended implementation of leave without pay (page 4(a) of A). The letter prompted the applicant to submit a signed liability form acknowledging and giving a go ahead for deduction of her salary for 126 days of absence mentioned in the letter. The letter was sent out to be sent to the applicant. She is not aware whether the applicant responded to it or not.
29. Ms Manto- Mati further testified that the applicant was again sent a letter similar to hers by the Deputy Principal, Mr Mhlongo, dated 22 June 2023.
30. On whether she was the responsible official for invoking processes towards applicant’s pay deductions and implementation thereof her answer was that such would have to be done by officials from Mount Fletcher Campus, not her as she is based in Mount Admin Center. The documents she had sent the applicant in January 2023 were sent to notify her only and not as implementing deductions from her pay. There was supposed to be a disciplinary hearing before pay deductions were implemented.
31. She could not testify on whether all the requisite medical documents and TIL forms were adequately submitted as she was not dealing with the issue. Mount Fletcher Campus based human resources officials were better placed to provide such answers. She further acknowledged that the deductions from applicant’s pay were made without proper documentation as notice of her DC hearing was issued on 11 March 2011, way after the implementation of pay deductions. In the DC hearing the chairperson advised that pay deductions cannot be implemented without first holding DC hearing and finding the employee guilty of unauthorised absence. That is precisely the reason why the chairperson never pursued the matter any further.
32. Upon being taken through the applicant’s TIL application forms she acknowledged that the applicant did complete and file her application forms.
    Arguments
33. For the applicant it was argued that the applicant was on prolonged leave of absence due to ill-health, and such situation had been communicated to the 1st respondent. The applicant did all that was expected of her as she constantly submitted the sick notes for her days of absence. She submitted her TIL forms together with requisite medical reports. Her pay got to be unfairly deducted with no consideration of section 34(1) of the BCEA. There was no agreement from the employee for the deductions to happen, nor were they permitted in terms of the law. The applicant suffered quite immensely because of the 1st respondent’s conduct. She is seeking re-imbursement of the deducted monies and a further 12 months’ compensation for the suffering she was made to endure.
34. For the 1st respondent it was argued the 1st respondent was in terms of its 2022 Leave Policy entitled to make deductions on applicant’s pay after she had failed to submit her TIL forms within requisite clause 4.10.9 requisite working 5 days after being absent, and within 2 working days after being notified to file the form (clause 4.10.10). Reliance is put on Hayes v National Minister of Police NO and Others where the Labour Court held that where an employee ought not to have been paid the State is entitled to make deductions in compliance with section 38 of Public Service Act 103 of 1994 (PS Act) and section 34 of BCEA. The applicant had not adequately submitted her TIL application and even when called upon to do so by her employer. The 1st respondent adequately followed the provisions of its Leave Policy when it made deductions from her pay.
    ANALYSIS OF EVIDENCE AND ARGUMENTS
35. On the claim for IQMS for 2025, which would have been due from 30 November 2025 the applicant did not lead any substantial evidence to substantiate her eligibility to be paid pay progression in terms of ELRC Pay Progression for FET Based Educators Collective Agreement 5 of 2005 (IQMS Resolution). Should she have been proven eligible she would have been entitled, in terms of PSCBC Resolution 1of 2018 (clause 4.1), to have her salary increased by 1.5 % per annum. No evidence was led to suggest that the applicant had in terms of clause 16 of IQMS Resolution carried out cumulative evaluation at the end of year assessment. What needed to be proven was her part being played and that the 1st respondent had simply refused to play its part.
36. Coming to the issue of the deductions as itemized in paragraph 9 above, these deductions were carried out before the dispute got to be referred. Deductions carried out after the referral of the dispute cannot be dealt with in this award as the impugning thereof is not properly before me for consideration. Evidence has been made that the implementation of the said deductions was not made by an adequately delegated official. The Campus Manager could not testify to how the deductions were actually carried out as she said an official from human resources would better provide explanation and account of how they were carried out. When human resources official came to testify she also could not provide account on who exactly implemented the deductions and how. Her testimony was that she only notified the applicant of intention to effect deductions and never followed up on what she had notified her of. The officials who are better placed to provide answers, according to her, are from Mount Fletcher Campus. Ms Manto- Mati further mentioned that deductions should not have been effected before disciplinary steps were taken. This is confirmed by clause 4.10.10(b) of the Leave Policy which provides that failure to submit TIL application form should be viewed in very serious light and disciplinary steps be taken. There was evidence of the applicant having submitted two TIL applications, and her having attended a Labour Forum meeting held on 21- 22 November 2022. The Campus Manager did see her and had been made aware of the fact that she had been at home because of her ill-health.
37. The deductions were not made in line with section 34(1) of BCEA. No written agreement was obtained from the applicant in line with section 34(1)(a). Furthermore, the deductions cannot be said to have been made in terms of the law (as required by section 34(1)(b)). Section 38(2)(b) of PS Act provides that if an employer has been overpaid or has received any such other benefit not due to him or her, an amount equal to the amount he or she received shall be recovered from him or her by way of deduction from his or her salary of such instalments as relevant accounting officer (or delegate in terms of section 42(5)) may determine. This section has been declared to be unconstitutional in PSA obo Ubogu v HoD of Department of Health- Gauteng and Others . The Constitutional Court held (at para [66]) that the deductions in terms of section 38(2)(b) constitute an unfettered self-help, which is the taking of the law by the State into its own hands and enabling it to become the judge in its own case, in violation section 1(c) of the 1996 Constitution. Recovering money in terms of this section can just not be done until it is amended in order to address the mentioned short comings.
    Relief
38. With all said above there was just no legal basis for the 1st respondent to make deductions from the applicant’s salary. The applicant has prayed for the relief of being reimbursed with the monies deducted from her salary and 12 months’ compensation for the suffering she was made to endure as a result of 1st respondent’s conduct. I am not convinced that compensation is an appropriate relief in the matter at hand as the applicant will get a substantial relief of being paid what was deducted from her. With deductions having been proven to not have been justifiable effected a fair and competent relief is that she be paid back what was deducted.
    AWARD
39. I therefore make the following award:
    39.1. The deduction of the applicant’s salary for days from 15 October 2023 to 15 January 2026, were not agreed to by the applicant or effected in terms of the law.
    39.2. The 1st respondent is ordered to pay pack to the applicant all the money deducted from her salary from 15 October 2023 to 15 January 2026, amounting to the total of R20 769.65, by not later than 15 September 2026

Signature:

Commissioner: Mxolisi Alex Nozigqwaba
Sector: ELRC