In the ARBITRATION between:

Athukattu G.M. Nair Applicant

and

Department of Education: North West First Respondent

Applicant/Union: Athukattu G.M. Nair

Applicant’s address: P.O. Box 8145

Rustenburg

0300

Telephone: 014 533 1539

Telefax: 084 627 5889

Respondent: Department of Education: North West

Respondent’s address:

Private Bag X275

Mmabatho

2735

Telephone: (018) 388-4107

Telefax: (018) 388-1703

DETAILS OF HEARING AND REPRESENTATION

A. The Arbitration was scheduled for hearing on the 9th June 2014 at the Respondent’s Bojanala District offices at Palladium House, 102 Klopper Street, Rustenburg. The Applicant was represented by Adv. N.E. Raikane. The Respondent was represented by Lesego Lejaka its Labour Relations Officer. The proceedings were recorded both manually and electronically.

ISSUE TO BE DECIDED

B. Whether or not the Respondent had correctly interpreted and applied the provisions relating to temporary incapacity leave in terms of the Employment of Educators Act.

BACKGROUND TO THE ISSUE
C. The Applicant is employed by the Respondent and has been on temporary incapacity leave from the 1st November 2013. He was diagnosed with major depressive disorder arising from the conditions at the school and since 16th May 2013 he has been under specialist psychiatric treatment. All necessary temporary incapacity – long period forms and documents as per PILIR policy have been completed and submitted to the Respondent.

D In an undated letter received on 3rd February 2014, the Respondent informed the Applicant that his incapacity leave was declined. His legal representative lodged a dispute against the decision of the Respondent on the 5th February 2014.

E The matter was referred to conciliation when it remained unresolved. Due to the evidence being common cause, the parties agreed that they would file heads of arguments instead of presenting oral evidence.

SURVEY OF EVIDENCE AND ARGUMENT

EVIDENCE

Documentary

F Bundles of documents were submitted by the parties which were marked.

** As noted previously the proceedings were digitally recorded therefore what appears hereunder constitutes a summary of the evidence deduced by the parties in so far as is relevant for the purpose of this arbitration; it is by no means a minute of what transpired in the course of the proceedings.

Submissions provided by the Applicant’s Representative:

G. Section 9 of the Employment of Educators Act 76 of 1998 dealing with temporary incapacity leave reads ad verbatim as follows: Section 9.1 stipulates “An educator who has exhausted her or his sick leave credit in a three-year cycle and who, according to the relevant medical practitioner, required to be absent due to incapacity that is not permanent may be granted additional sick leave with full pay.”

H. Section 9.2: “Such a condition must have been certified in advance by the attending medical practitioner as a temporary incapacity except where the conditions do not permit.”

I. Section 9.3: “The Head of Department may require the educator to obtain a second opinion before granting approval for the additional sick leave. Expenditure in this regard will be met from the departmental budget.”

J. Section 9.4: “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. The investigation shall be conducted in accordance with item 10(1) of Schedule 8 of the Labour Relations Act, 1995.

K. Section 9.5: “On the basis of medical evidence, the Head of Department may approve the granting of additional leave days on conditions that she or he shall determine.”

L. Section 9.6: “If the educator is of the view that she or he has been unfairly treated as regards the granting of additional sick leave, she/he has the right to follow the grievance procedure and the relevant dispute resolution procedures in order to settle the matter.”

M. Section 9 of the Constitution of the Republic of South Africa, Act 108 of 1996 stipulates in Section 9.1: “Everyone is equal before the law and has the right to equal protection and benefit of the law.”

N. Section 9.3 of the Constitution states: “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

O. Section 9.4: “No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of section (3). National legislation must be enacted to prevent or prohibit unfair discrimination.”

P. Section 9.5: “Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.” In this case the Applicant was discriminated against unfairly due to the fact that other patients who were treated by the same specialist psychiatrist were granted incapacity leave by the same employer during the same period; for example Mr. Isaac More an educator stationed at Rapulana Primary School, in Mahikeng and one Mr. Williams from Bojanala District were granted incapacity leave. It is common cause that “similar cases must be treated alike.” This is not the case here. The guidelines of the constitutional court on page 3 above, says there must be consistency in applying the rule, as standard or law. It is submitted that the Respondent was not consistent.

R Section 10 of the Employment of Educators Act 76 of 1998 dealing with permanent incapacity leave in section 10.1 stipulates as follows: “Educators whose degree of incapacity has been certified by a competent medical practitioner as permanent shall, with the approval of the Head of Department, be granted a maximum of 30 working days paid sick leave, or such additional number of days required by the employer to finalise processes mentioned below.”

S In Section 10.2 it states as follows: “The employer shall, within 30 working days, ascertain the feasibility of:

10.2.1 “Alternative employment; or

10.2.2 “Adapting duties or work circumstances to accommodate the educator.”

T Further Section 10.3 states as follows: “An educator, whose degree of incapacity has been certified as permanent but who can still render a service, may, in terms of the applicable measures, be redeployed horizontally with retention of her or his benefits.”; Section 10.4 states “If the redeployment necessitates re-allocation to a job of a lower grading, such action should be explained well in advance and the continued utilization of such an educator should, in this regard, be with her or his consent.”

U Section 10.5 stipulates: “In instances where the educator’s redeployment entails retraining, the employer shall take requisite resources (time and financial) and potential returns into consideration before approving redeployment.”

V Section 10.6 states as follows: “The redeployment of an educator’s services should ensure the optimal utilization of her or his competencies and should not compromise service delivery.”

W Section 10.7 states: “if the employer or the educator is convinced that the educator will never be able to render an effective service at her or his level or rank, the educator may proceed with an application for termination of service due to ill health.”

X The Applicant respectfully challenges the decision of the Respondent as the Respondent did not apply the law correctly on the following grounds:

· The Applicant was treated by a registered Specialist Psychiatrist who recommended long periods of incapacity leave for his recovery. The Applicant therefore complied with the statutory provisions of the Employment of Educators’ Act section 9.2 by attending a medical practitioner namely Dr. Lubulu.

· Before declining the Applicant’s incapacity leave, the Respondent did not refer the Applicant to an independent specialist psychiatrist for a second opinion in accordance with item 10(1) of Schedule 8 of the Labour Relations Act and Chapter J (9.1 to 9.6) of the Employment of Educators Act 1998 regarding temporary incapacity leave before declining the incapacity leave (See page 258 of the Applicant’s bundle of documents).

· The Applicant is now suffering from permanent incapacity and it was recommended by the specialist psychiatrist to place him horizontally other than in a school situation where he can still render a service (they referred to page 158 of the Applicant’s bundle). This is in conjunction with Chapter J 10(1) to 10(7) of the Employment of Educators Act 76 of 1998.

· All necessary documents relating to the incapacity leave were submitted on time to the school and a copy was submitted to the Respondent’s office. The Respondent has unilaterally and unlawfully had recourse to the capped leave days of the Applicant as evidenced by the documents in the bundle, by deducting 62 days of capped leave during the period 1 November 2013 to 31 January 2014 from his accumulated leave especially when the matter is still sub judice.

In the last meeting with the commissioner, the Respondent conceded by promising not to continue deducting the Applicant’s capped leave days while the matter is “sub judice”. This clearly shows that the Respondent shows remorse for its unlawful conduct in dealing with this matter, especially in unilaterally deducting the capped leave days of the Applicant.

It is also trite law and common cause that “self-help” is not encouraged by the law.

The Respondent submitted as follows:

Y The Applicant applied for temporary disability leave for the period stated. The Respondent declined the Applicant’s application for temporary disability after careful analysis of the application because the medical and collateral evidence does not support the claim of significant occupational incapacity; so this clearly states that the Applicant can still perform his duties as an Educator.

Z This application for a long period of temporary incapacity leave was performed in order to ascertain the cause of the Applicant’s incapacity and the extent to which it affects his ability to perform his occupation.

AA The Respondent proposed an option of transferring the Applicant to another school but he refused, despite stating that the illness is caused by unfair treatment by the Departmental Officials, RBI and unfair treatment at the work place.

BB The Applicant’s reason for refusal to transfer is that he will even experience the same problems at the school to which he will be transferred. The question then becomes how can the Applicant preempt what will happen? This clearly shows that he just wants to be office based.

CC The Applicant is a Deputy Principal and he should be well conversant with the grievance procedure. If he received any unfair treatment from anybody why did he not exercise his right of lodging a grievance against the alleged perpetrators?

DD The law is clear that in an alleged Unfair Labour Practice dispute the burden of proof is on the Applicant.

EE The Applicant quoted Section 9 of the Employment of Educators Act namely “An educator who has exhausted his or her sick leave credits 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.”

FF Leave is not an entitlement but a privilege that is why it should be applied for and section 9 does not say it “must” be granted it says “may” be granted meaning that the granting thereof is at the discretion of the Employer.

GG Section 9.3 stipulates “The Head of Department may require an educator to obtain a second opinion before granting approval for additional sick leave.” The word may in this section does not oblige the Employer to take the Educator for second opinion; in this instance the employer made its assessment through its doctors i.e. SOMA by means of the Applicant’s documents.

HH In the Applicant’s heads of arguments he makes reference to Section 9 of the Constitution of the Republic of South Africa that talks to discrimination but they are not precise on which grounds he was discriminated against – race, gender, sex, ethnic or social origin, colour, sexual orientation or what?

II The Applicant also makes mention of Mr. Williams and Mr. More; he should have provided us with their information i.e. their applications for temporary disability, and their comprehensive approval from SOMA.

JJ The nature of the dispute is the interpretation of a collective agreement. In the Applicant’s heads of argument reference is made to discrimination which changes the nature of the dispute, so the Applicant should decide what his dispute is.

KK The Applicant’s heads of arguments refers to Section 10 of the Employment of Educators Act No. 76 of 1998 where section 10.1 reads:

“Educators whose degree of incapacity has been satisfied by a competent medical practitioner as permanent, shall with the approval of the Head of Department be granted a maximum of 30 working days paid sick leave, or such additional number of days required by the Employer to finalise the process mentioned below.”

LL The Respondent clearly states through SOMA its medical doctors that the Applicant’s medical and collateral evidence does not support the claim of significant occupational incapacity, so we cannot even entertain any section below 10.1 of the Employment of Educators Act No. 76 of 1998 unless the Applicant suggests that he disputes the credentials of the Respondent’s doctors.

MM Further, all that the motivation for incapacity leave from Dr. Lubulu states is that the Applicant’s incapacity leave be extended accordingly while his medications are reviewed. To the best of our knowledge the Specialist Psychiatrist should amongst others administer medication to the Applicant but we believe that at some stage the Applicant should have been referred by Dr. Lubulu to a psychologist.

NN The Applicant’s psychiatrist stated that the disapproving of the Applicant’s leave is a labour malpractice amounts to victimization. The psychiatrist is not a labour expert and his duty is to make recommendations and not to impose approval of his recommendations on the Respondent. That is the Head of Department’s jurisdiction.

OO The Policy and Procedure on Incapacity Leave and Ill Health Retirement (PILIR) determined in terms of section 3(2) of Public Service Act of 1994 as amended by the Minister for Public Service and administration, section 7.1 also states that incapacity leave is additional sick leave granted conditionally at the Employer’s discretion as provided for in the Leave Determination and PILIR not at the discretion of the specialist, his is to recommend and recommend only and it is safe to state the Employer has exercised its discretion after thorough assessment of documents by SOMA.

PP For the Applicant to suggest that “the Respondent conceded by promising not to continue deducting the Applicant’s capped leave days while the matter is sub judice is an indication that the Employer shows remorse for his unlawful conduct in dealing with the matter especially unilaterally helping by having recourse to the capped leave of the Employee” shows the Applicant’s inference is very much ill informed.

QQ The Respondent advised the Applicant in writing that within 5 working days he should elect whether the unapproved temporary incapacity leave period must be allocated as unpaid leave or taken as annual leave. The Applicant did not respond.

RR For the Applicant to specifically want to be office based when he says he cannot cope at school level where he works from 07h00 and has school holidays, is surprising. Yet the Applicant is sure that he will cope with office based work where employees work from 9h30 and have only 21 days as vacation leave.

SS The Respondent did not contravene any law but worked within the ambits of the law.

ANALYSIS OF EVIDENCE AND ARGUMENT

1. I am required to determine whether or not the Respondent had correctly interpreted and applied the provisions relating to temporary incapacity leave in terms Resolution 7 of 2001 read together with the Employment of Educators Act.

2. Professor John Grogan (Grogan Workplace Law (8th Edition) at page 375 of the book where the meaning of “interpretation or application” was considered, held that:

“a dispute over the interpretation of a collective agreement exists when the parties disagree over the meaning of a particular provision, a dispute over the application of a collective agreement applies to a particular set of facts or circumstances”.

3 In a case where the facts were almost identical namely Rikhotso v MEC for Education (JS 1152/02) [2004] ZALC 83 (11 November 2004) TSHIQI AJ stated that:- “The Respondent referred the application for the discharge to a medical panel at the Department of Health for consideration. The panel considered the application and made the following recommendations:

‘After careful consideration of the case of Mr. Rikhotso, we recommend that he not be discharged on medical grounds. Reasons: He suffers from a Major Depressive Disorder and symptoms of Post Traumatic Stress Disorder for which he has been on treatment since June 2000. There are precipitators which are directly work related and could be modified; his treatment does not yet fulfill the Criteria of Medical Boarding as set out in the “Guidelines to the Management of Disability Claims on Psychiatric Grounds” is issued by The Life Offices Association of SA and The Society of Psychiatrists of SA (Insert to the SAMJ, June 1996). The Department should endeavour to find a more suitable position possibly in another school or Department for him. Re-assessment should be done after a year, submitting a full follow-up Psychiatric and Work Report indicating the outcome of the above recommendations.’

It is common cause that the Respondent attempted to place the Applicant in three separate schools. He did not continue to work in these schools because of his perception that he is not wanted for various reasons.

It is clear from the circumstances of this matter that the Applicant was not willing to resolve his problem. He was only interested in being discharged. I therefore reject his testimony that he would have considered being placed at a district office. This was never expressed by him at all when he was being persuaded to report for duty nor was it mentioned by him during his examination in chief.

This was only mentioned by him during cross examination. As stated above, his conduct throughout the process clearly showed that he was not interested in resolving his issue in any other manner other than being discharged.


He did not co-operate with the Respondent in their attempts to find alternative means as recommended by the panel of the Department of Health. I am satisfied that the Respondent complied with Schedule 1 of the Educators Act. …As regards the issue whether the Applicant was entitled to be discharged permanently, it is clear that the Respondent made a decision after seeking the opinion of independent experts who made the recommendation after assessing the reports submitted by the Applicant. They agreed with the diagnosis but differed on whether he met the criterion to be discharged. The decision taken by the Respondent to decline the application was based on expert opinion as recommended in Schedule 1 of the Educators Act. In the circumstances I am satisfied that the Applicant was not entitled to be discharged permanently on medical reasons.”

3. When the law is applied to the present facts it is clear that the Respondent had complied with the provisions of Resolution 7 of 2001 read together with the Employment of Educators Act and that it was the Applicant who refused to co-operate with the Respondent.

4. For the above reasons the case of the Applicant is accordingly dismissed.

AWARD

The case against the Respondent is accordingly dismissed.

ELRC Senior Panelist