IN THE ELRC ARBITRATION
BETWEEN:
HLALISIWE NKWANYANA “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU-NATAL “Respondent”
ARBITRATION AWARD
Case Number: ELRC159-22/23KZN
Last date of arbitration: 22 August 2024
Date of submission of closing arguments: 30 August 2024
Date of award: 10 SEPTMBER 2024
NTOMBIZONKE MBILI
ELRC Arbitrator
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration commenced on 17 March 2023, proceeded on 14 April 2023, 02 November 2023, and the presentation of evidence was finalized on 22 August 2024. Both parties thereafter requested and were granted permission to submit written closing arguments by no later than 30 August 2024. The matter was at some point postponed sine die, due to the Applicant applying and being granted permission to re-open her case, in order to call an expert witness, which she failed to secure.
2. The arbitration was held at the Pinetown offices of the KwaZulu-Natal Department of Education.
3. The Applicant was initially represented by Ms Zesizwe Mkhwanazi, a Legal Practitioner from SM MBATHA INC. During the course of the case Ms Mkhwanazi went on maternity leave and the matter was taken over by Mr Nkosi from the same firm. Ms Mkhwanazi returned as a representative of the Applicant on the last sitting of the hearing.
4. The Respondent, the Head of the KwaZulu-Natal Department of Education (the Department,) was represented by Mr Itumeleng Makhoee, employed by the Department as a Labour Relations Director.
5. The parties submitted a common bundle of documents. The proceedings were digitally and manually recorded. The services of an interpreter were utilized.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
6. The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186 (2) of the Labour Relations Act 66 of 1995 (LRA) in relation to the Department’s failure to grant the applicant temporary incapacity leave.
7. I am required to decide whether the respondent’s refusal to grant the Applicant temporary incapacity leave constituted an act of unfair labour practice.
8. The Applicant seeks the Department to approve her temporary incapacity leave and pay back the amount that was deducted from her salary together with the amount she paid to the Department in the sum of R25547.49.
BACKGROUND
9. The Applicant is employed as an Educator and stationed at Ziphathele Primary School, earning a basic salary of R27 135,57.
10. The Applicant was hospitalized and gave birth to a still born child. The trauma and depression that was caused by giving birth to a still born child led to her being unable to resume her duties as an Educator. She exhausted all her allocated sick and leave days and thereafter applied for temporary incapacity leave for period 02 September 2020 to 30 September 2020 in the prescribed form and sent it to the Department. The Department submitted her application to Thandile Health Risk Management for assessment and recommendation, the application was refused and the period of absence was treated as unpaid leave which amounted to R23152.49. The Applicant claims that the Department deducted R5788.12 from her salary and she thereafter paid the outstanding debt of R17364.37 to the Department.
11. The Applicant submitted another application for temporary incapacity leave for period 30 March 2021 to 01 April 2021 after she suffered from a second miscarriage. The Department submitted the application to Thandile Health Risk Management and the application was declined. The Department deducted R2395.00 for the unpaid leave period. The Respondent is of the view that the Applicant understood the reasons for the refusal to grant the temporary incapacity leave application and that the Applicant only filed a dispute as an afterthought.
SUMMARY OF EVIDENCE AND ARGUMENTS
The Applicant’s case
12. The Applicant gave evidence and stated that in April 2020 she was at the beginning of the eighth month of her pregnancy. On 15 April 2020, she did not feel the baby kicking and consulted her gynaecologist. She was advised by her doctor that the baby had no heartbeat. On 17 April 2020 she was hospitalized and induced into labour and gave birth to a still born baby. She was discharged from the hospital on 20 April 2020 and had to make arrangements to bury the baby.
13. She was referred to page 5 of the bundle, a report from a clinical psychologist, who consulted her while she was admitted in hospital. She submitted that she informed the employer about the complications of her pregnancy on the day that she found out that she lost the baby. Pages 6, 7 and 8 of the bundle were the medical certificates that she submitted to the employer.
14. When her sick leave exhausted, she sought advice from Mr Shangase, the Deputy Principal, regarding the type of leave she could apply for because she was not emotionally ready to return to work and he advised her to apply for temporary incapacity leave.
15. She submitted the temporary incapacity leave application by email because whenever she went to the school to submit sick notes, the learners would ask her about the baby, and that triggered her depression immensely.
16. When she applied for temporary incapacity leave, she attached the medical certificates, specialist report and all relevant documents required.
17. She stated that her sick leave exhausted in June 2020, and she applied for incapacity leave in the beginning of July 2020. She initially applied for incapacity leave for the period 02 September 2020 to 15 September 2020, and thereafter for period 15 September 2020 to 30 September 2020, both periods were supported by medical certificates. She returned to work on 01 October 2020.
18. The Applicant stated that she was advised 07 months later that her application for incapacity leave was not granted due to “no specialist intervention”, even though she had submitted a report from her psychologist. She visited Truro House (District Office) and she assisted by Ms Njapha. Ms Njapha advised her that the specialist report was not attached to the application, and that she should lodge a grievance.
19. She lodged a grievance and the grievance was rejected due to the substantial number of days utilized for sick leave without the intervention of a Specialist. She added that she became aware of the grievance outcome on 02 September 2021, a year later after she had applied for temporary incapacity leave. The Department proceeded to deduct a sum of R5 788.12 from the Applicant’s salary as the period she was absent for was deemed as unpaid.
20. She visited Ms Njapha again and she was informed that she could not challenge the outcome of the grievance any further. She signed an acknowledgment of debt and was given a breakdown of the outstanding debt of R17 364.37. She was given an option to pay the outstanding debt into monthly instalments of R3000.00. Upon consideration and advise from her husband she elected to settle the outstanding debt of R17 364.37 by making an electronic deposit to the Department.
21. On 07 March 2021 she had a second miscarriage and had to go back to therapy, and as a result of the miscarriage she suffered from chest pains, and consulted a Doctor. She was booked off sick by the Doctor on 30 March 2021 to 01 April 2021. She applied for temporary incapacity leave and the application for leave was declined and the period of absence was treated as unpaid leave of which R2395.00 was deducted from her salary.
22. She was referred to page 61 and stated that when the incapacity leave was declined for the period 30 March to 01 April 2021, she filed a grievance against the decision and the outcome of the grievance was that she was unsuccessful. Page 65 were the results of her x-ray examination, which she attached to the grievance form.
23. Under cross-examination she stated that she informed the Doctor that she had chest pains, and the diagnosis did not come from the Doctor. She further confirmed that the x-ray results were normal and that the chest pains were caused by her having anxiety and trauma.
24. She stated that Annexure A, the application form for temporary incapacity leave, was an extension of the sick leave and that she was under the impression that upon submission of Annexure A accompanied by the relevant documents, the leave would be granted. She added that the Department declined her application for the temporary incapacity leave seven months after the application was filed and that the Department’s failure to give feedback promptly and expeditiously, prejudiced her.
25. The Applicant stated that she believed that Thandile Health Risk Management made a decision to not grant her incapacity leave based on the documents that she submitted but did not do their own investigation by sending her to their own medical team for evaluation.
26. She stated that she understood that once an acknowledgement of debt has been signed it meant that you take accountability for that debt. She added that she paid the remainder of the debt in full because she was told that she could not challenge the decision any further and that she was exhausted emotionally and psychologically.
The Respondent’s Case
27. The Respondent called Nonjabulo Sibusisile Xulu, employed by the Department in June 2019 as an Assistant Director: Human Resources Conditions of Service. Her duties entail managing and administering leave.
28. She stated that the Circuit does not have jurisdiction to approve leave applications. The Principal recommends and does not approve Human Resource matters.
29. The witness stated that the Applicant made an application for incapacity leave using Annexure A. The application came before her office and the application was declined by Thandie Health Risk Management due to insufficient information provided. The Applicant was informed that the application had been declined and the outcome was handed down to her by the Principal. The Applicant was not happy about the outcome and filed a grievance which was also declined.
30. She submitted that the Applicant spoke to the Finance Department and signed an acknowledgement of debt and further requested for a breakdown of the debt. She elected to decline the offer from the Department to make monthly payment instalments and elected to settle the outstanding debt in full.
31. The same process was followed when the Applicant applied for incapacity leave for 30 March 2021 to 01 April 2021. The application was sent to Thandile Health Risk Management for assessment and the application was declined, reason being her medical certificate was vague with invalid/ or no diagnosis. She said the process is directed by a National Policy that the employees are inducted on upon appointment.
32. She stated that the policy states that the Department should respond to the incapacity application within 30 days from the time the application was received. She added that the late response by the Department was unfair, but the Applicant was not prejudiced. The country was faced with a pandemic in 2020, and no Department was operating within normal hours.
33. She went on to say that the Applicant signed a consent form allowing the Risk Manager to contact her doctors.
ANALYSIS OF EVIDENCE AND ARGUMENT
34. The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186 (2) of the Labour Relations Act 66 of 1995 (LRA) Policy and Procedure on Incapacity Leave and Ill-Health Retirement (“PILIR”) and the Determination on Leave of Absence in the Public Sector in relation to the Department’s failure to grant the applicant incapacity leave.
35. In terms of clause 7.1 of the PILIR the following bears importance on the issues that I am to determine in this matter:
“7.1. TEMPORARY INCAPACITY LEAVE
7.1.1. Incapacity leave is not an unlimited amount of additional sick leave days at an employee’s disposal. Incapacity leave is additional sick leave granted conditionally at the Employer’s discretion, as provided for in the Leave Determination and the PILIR.
7.1.2. An employee who has exhausted his/her normal sick leave, referred to in the Leave Determination, during the prescribed leave cycle and who according to the treating medical practitioner requires to be absent from work due to a temporary incapacity, may apply for temporary incapacity leave with full pay on the applicable application forms prescribed in terms of the PILIR in respect of each occasion.
7.1.3. For purposes of managing temporary incapacity leave and the application of the PILIR, temporary incapacity leave is regarded to be-
7.1.3.1. a short period of incapacity leave, if the employee is absent for not longer than 29 working days per occasion, after the normal sick leave credit have been exhausted, in a sick leave cycle; and
7.1.3.2. a long period of incapacity leave, if the employee is absent for 30 working days or more per occasion, after the normal sick leave credit have been exhausted, in a sick leave cycle.
7.1.4. Applications for temporary incapacity leave must be submitted on the following prescribed application forms:
7.1.4.1. Annexure A for short periods of incapacity leave; or
7.1.4.2. Annexure B for long periods of incapacity leave.
7.1.5. For an employee’s application for temporary incapacity leave to be considered the –
7.1.5.1. employee must submit sufficient proof that s/he is too ill/injured to perform his/her work
7.1.5.2. application form must, regardless the period of absence, be accompanied by a medical certificate with the medical information form in support of the mandatory medical certificate in the case of a short period of temporary incapacity leave, issued and signed by a medical practitioner and if the employee has consented, the nature and extent of the incapacity. Please also refer to the Leave Determination for further details on the acceptance of medical certificates;
7.1.5.3. employee is in accordance with item 10(1) of Schedule 8 to the LRA afforded the opportunity to submit together with his/her application form-
(a) any medical evidence related to the medical condition of the employee, such as medical reports from a specialist, blood test results, x-ray results or scan results, obtained at the employee’s expense; and
(b) any additional written motivation supporting his/her application.
7.1.5.4. employee is requested to give his/her consent that medical information/records be disclosed to the Employer and/or its Health Risk Manager and to undergo further medical examinations in terms of the assessment process described in the PILIR. Where the employee chooses not to grant consent the employee’s application will be assessed based on the available information at the employer’s disposal, only.
7.1.6. An employee must submit his/her application for temporary incapacity leave in respect of clinical procedures in advance, unless the treating medical practitioner certifies that such procedures have to be conducted as an emergency.
7.1.7. If overcome by a sudden incapacity, the employee must personally notify his/her supervisor/manager immediately. A verbal message to the supervisor/manager by a relative, fellow employee or friend is only acceptable if the nature and/or extent of the incapacity prevents the employee to inform the supervisor/manager personally.
7.1.8. An employee must submit an application form for temporary incapacity leave personally or through a relative, fellow employee or friend within 5 working days after the first day of absence.”
36. It appears from the evidence that was placed before me that the applicant had applied for short term temporary incapacity leave and that the leave was not approved by the respondent.
37. The basis upon which the leave was refused by the employer was that the information submitted by the applicant was insufficient. To this end the employer refused the application.
38. In the case of Public Service Association of South Africa and Another v PSCBC Gouvea and Others [2013] ZALCD 3 it was held as follows:
“An employee whose normal sick leave credits in a cycle have been exhausted has a right to be granted additional Temporary Incapacity Leave (TIL) on full pay provided that: the employee informs the supervisor that he/she is ill; a registered medical practitioner has duly certified the condition in advice; the employer shall investigate the incapacity in terms of Schedule 8, clause 10(1) within 30 working days. ………………………………… Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax, in the context in which the provision appears, the apparent purpose to which it is directed and the material known to those who are responsible for its production……………………….
Judges must be alert to and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation. In a contractual context, it is to make a contract for the parties other than the one that they in fact made……………………….
This report sought to have retrospective effect. The consequence of a retrospective effect is that it amounts to an unreasonable and arbitrary exercise of discretion with unfair consequences to an employee.”
39. It appears from the facts of this case that the applicant had filed her temporary incapacity leave initially on 17 September 2020 for the period between 02 August 2020 to 30 September 2020. The decline was communicated by the respondent to the applicant on 13 April 2021 following recommendations that were received from Thandile Health Risk Management. The reasons given by Thandile for declining the application were that the application was lacking in content and that Thandile attempted to procure additional information and no additional information to validate the period applied for could be obtained. The applicant not being satisfied with the respondents decision lodged a grievance and the grievance was declined on 02 September 2021, due to “no specialist intervention noted”.
40. It seems that the applicant was only advised 07 months later that her application for the temporary incapacity leave was refused and the outcome of the grievance was handed to the applicant a year later from the date on which her initial application for the temporary incapacity leave was lodged. This is clearly in contravention of the time frames set out in the applicable policy framework and legislation.
41. The report from the risk management consultants is not clear on the basis upon which the report given by the specialist, psychologist was rejected. No evidence of the consultant was led to speak to the rationale of rejecting the report. I am accordingly not satisfied that the respondent acted fairly when this report was not considered as conclusive proof of incapacity.
42. In the case of Holburn v Member of the Executive Council, Department of Education and Another (P603/09) [2011] ZALCPE 12 (9 November 2011) the following was held:
“[11] The procedure to be followed by the employer when faced with incapacity of an educator due to ill-health or injury is set out in Schedule 1 of the Employment of Educators Act (the EEA).1 Item 3 of the Schedule 1 of the EEA imposes a duty on the employer to conduct an investigation concerning the extent of the ill-health or injury that may have been suffered by the educator. The conditions that triggers the investigation are the following: Poor performance arising from ill-health or injury. The employer forming the view that the educator is unable to perform his or her duties due to ill-health or injury or, An application by the educator indicating that he or she requires to be discharged from service due to continuous ill-health or injury.
[12] An educator acquires the right to be heard on all aspects related to the investigation upon the employer taking the decision to conduct an investigation related to incapacity due to ill-health.
[13] As part of the investigation, the employer has in terms of section 7 of the EEA, at the Sate’s expense to examine the affected educator’s state of health. The affected educator has the right to nominate any other medical practitioner to be involved in his or her ill-health examination.
[14] The medical practitioner appointed by the employer is obliged to submit a report to the employer on completion of his or her ill-health investigation indicating the following:
1. the nature and extent of the educator’s ill-health or injury and;
2. whether the ill-health is temporarily or permanent. The medical practitioner appointed by the educator may submit a report to the employer, if the educator is not satisfied with the report of the medical practitioner appointed by the employer.
[15] The next stage in the process, depending on what the medical report(s) submitted to the employer says, is for the employer to:
1. determine whether the nature of the ill-health or the injury is of a temporary or a permanent nature and; the period the employee is likely to be away from work.
2. Having made the above determination, the employer is to furnish the educator with a written report indicating the results or the findings of the investigation.
3. If the ill-health or injury of an educator is of a permanent nature, the employer has to investigate the following possibilities:
(a) Securing alternative employment for the educator;
(b) Adapting the duties or work circumstances of the educator to accommodate the educator’s ill-health or injury; or
(c) Consider the termination of the educators service with effect from a date determined by the employer.”
43. It appears from the evidence that the applicant submitted a report from the psychologist which in the respondent’s view was incomplete as there was no psychiatrist report accompanying same. The employer communicated its decision to reject the report excessively late and its justification was that the country was under lockdown owing to the Covid-19 pandemic.
44. It does not appear from the evidence that any investigation was conducted or that the employee was referred to another independent specialist for verification of illness as contemplated in its policies. This being the case, I find that the respondent failed to comply with its own policies which are binding on it and therefore acted unfairly towards the applicant.
45. In Popcru and Another v Department of Correctional Services and Another (D642/15) (2016) ZALCD, the Labour Court held:
“A late determination of an employee’s application for additional leave, as lamentable as this is, and a subsequent instruction to pay back the money to which the employee was not entitled does not produce a decision that retrospectively deprives the employee of a right to the payment in question. An employee seeking additional sick leave in terms of PILIR has conditionally been paid a salary while their application for additional leave is considered. This consideration should be over within 30 days. However, if the period the employer takes to decide the application exceeds the 30 days set out in PILIR, I do not see how the conditionality of payments to an employee, subject to a medical assessment, hardens into an entitlement after the 30-day investigation period lapses. Nor, in light of clause 7.2.2.2, 7.3.3.2 and note 4 of PILIR, should a reasonable employee applying for additional leave assume that, should a medical assessment go against them, even delayed, they are entitled to be paid for their absence from work. It seems to me that, if the underlying medical condition which prompted an employee to seek additional sick leave, is assessed not to have warranted such leave, this fact must determine what happens to any payments they receive while applying and not the employer’s delay in attending to the application.”
46. In PSA and HC Gouvea v PSCBC, Commissioner Lyster NO and Department of Land Affairs (D7511109) [2013] ZALCD the court held that an employer’s decision in exercising its discretion in terms of a collective agreement may not apply retrospectively as this amounts to an unreasonable and arbitrary exercise of discretion with unfair consequences to an employee.
47. The delay in the processing of the incapacity leave by the respondent placed the applicant in serious prejudice because she was ordered to make payments retrospectively in circumstances where the respondent was duty bound to finalise the process within 30 days. The applicant was thus treated unfairly.
48. In PSA and another v PSCBC & Others (D751/09) [2013] ZALD 3 (26/01/2013) the court held that where the state exceeds 30 days in investigating and giving an employee a response on his /her application it cannot penalize the employee.
49. The applicant signed the acknowledgment of debt and paid the money to the respondent in circumstances where the respondent had not undertaken the process of investigating the incapacity and referring the applicant to another specialist for verification. The acknowledgment of debt was clearly done in haste and should not have been done as the temporary incapacity leave was warranted given the applicant’s state of health outlined in the psychologist’s report.
50. In the premises I find that the acknowledgment of debt is invalid and stands to be set aside for the respondent’s lack of compliance with the policies and collective agreements regulating temporary incapacity leave at the respondent.
51. The applicant further applied for temporary incapacity leave for period 30 March 2021 to 01 April 2021 after suffering a second miscarriage. The application was refused due to the applicant’s diagnosis being vague. The applicant also stated that she consulted a Doctor after she suffered from chest pains as a results of the second miscarriage. There is no evidence before me that proves that the applicant had a second miscarriage and that the underlying cause of the chest pain was due to the miscarriage.
52. I am not satisfied that the respondent committed unfair labour practice by not granting the temporary incapacity leave for the period 30 March 2021 to 01 April 2021. I say so because it does not seem to me that this claim was sufficiently supported. The applicant failed to support the application with a specialist report. The x ray report does not state how she is unable to perform her duties. In fact the x-ray report says that her results are normal.
AWARD
I accordingly make the following award:-
1. The Respondent committed an unfair labour practice by deducting from the applicant’s salary for unpaid leave for period 02 September 2020 to 30 September 2021 and in causing the applicant to make payment of the full amount of R23152.49. The Respondent is directed to pay back to the applicant R23152.49 no later than 20 September 2024.
2. The claim relating to the period 30 March 2021 to 01 April 2021 for temporary incapacity leave is dismissed.
NTOMBIZONKE MBILI
Arbitrator
10 September 2024
ELRC159-22/23KZN