IN THE ELRC ARBITRATION
BETWEEN:

Simamane T “the Applicant”
and
THE HOD: DHET “the Respondent”

ARBITRATION AWARD

Case Number: ELRC25-25/26KZN

Date of arbitration: 09 June 2025 & 19 June 2025

Date of award: 15 July 2025

Lungisani Mkhize
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration proceedings were set down for 09 June 2025 and 19 June 2025.
2. The arbitration was held online.
3. The Applicant, Mr. Thamsanqa Simamane was present and represented himself. The Respondent, the Head of Department: Department of Higher Education & Training was represented by Mr. Sandile Paul Ngcobo, its Assistant Director from the Labour Relations Department.
4. The parties filed their closing arguments after the hearing on 19 June 2025.
5. The proceedings were held in English and IsiZulu. They were manually and digitally recorded.
6. Ms. Pinky Mabele provided interpreting services.

ISSUE TO BE DECIDED

7. I am to determine if the delay in the approval of the temporary incapacity leave outside the PILIR Policy limit of 30 days constituted unfair labour practice. I am also to determine if the Respondent applied its discretion reasonably by not approving the Applicant’s temporary incapacity leave. I am also to determine if the Respondent committed unfair labour practice if found to have acted unreasonably in applying its discretion. If the action of the Respondent is found to be unfair, I must determine appropriate relief. The Applicant sought approval of the temporary incapacity leave due to the alleged unfair labour practice and compensation for the procedural unfairness of approving his application outside the 30 day period in the PILIR Policy.

BACKGROUND

8. The Applicant is employed as a post level 1 Lecturer with persal number 62684574 since 02 May 2018 on a permanent post at the Umgungundlovu TVET College.
9. On 20 March 2024 and on 09 July 2024, the Applicant applied for temporary incapacity leave for the periods 03 April 2024 to 14 June 2024 and 09 July 2024 to 20 September 2024 respectively. The Respondent declined both applications on 03 February 2025.
10. Aggrieved by the decision of the Respondent, the Applicant referred an unfair labour practice dispute to the ELRC on 07 April 2025 in relation to the provision of benefits as envisaged in section 186 (2) (a) of the LRA. The ELRC scheduled the matter to be conciliated but it remained unresolved and a certificate of outcome was issued.
11. The Applicant requested that the matter be arbitrated. The ELRC then scheduled the matter to be arbitrated before me on 09 & 19 June 2025 as shown in paragraphs [1] to [6] of this award.

SUMMARY OF EVIDENCE AND ARGUMENTS

12. As per section 138 (1) of the LRA, I only summarized the evidence which I regarded to be relevant to the dispute and which helped me to reach my decision.
13. The Applicant provided the following documents amongst other in his bundle of documents:
    • Grievance Outcome-Dated 26 July 2023 from DHET DG
    • 03/04/2024 to 14/06/2024 Incapacity Period Application signed 20/03/2024 by Applicant
    • Letter Declining Incapacity Leave for period 1- 03/02/2025
    • Grievance to DHET in Relation to Declining of Temporary Incapacity Leave Period 1 Dated 07 February 2025
    • Prof A J Lasich Report-10/02/2025
    • 09/07/2024 to 20/09/2024 Incapacity Period Application signed 09/07/2024 by Applicant
    • Letter Declining Incapacity Leave for period 2- 03/02/2025
    • Prof A J Lasich Report- 10/02/2025
    • Grievance to DHET in Relation to Declining of Temporary Incapacity Leave Period 2 Dated 07 February 2025
    • PSCBC Award PSCBC94-24/25 by Panelist Karen Kleinot dated 04 March 2025
    • Emails between Applicant and Mr. Hugo on Award & Deductions
14. The Respondent provided the following documents amongst others in its bundle of documents:
    • Applicant’s Incapacity Leave Application Timelines
    • Outcome Decisions Received Dates /Dates Sent to Applicant

The Applicant’s Case

15. The Applicant testified under oath as follows: On 26 July 2023, the Respondent dismissed his grievance which related to his allegations against the Umgungundlovu TVET College Management, Students and the Grievance Panel. The employer committed unfair labour practice by not complying with Resolution 7 of 2000 from PSCBC. The PSCPC Award by Commissioner Karen Kleinot dated 4 March 2025 barred the Respondent from further deductions from the Applicant unless there was agreement or a court order.
16. The Applicant was seen by a Psychiatrist who found that he was not well. His Supervisor challenged his temporary incapacity leave to victimize him. His Supervisor eventually approved but the Director General of DHET, Dr. Nkosinathi Sishi did not approve his leave.
17. He was not given reasons why his temporary incapacity leave was not approved. After his leave was declined, he lodged an internal grievance but the Respondent refused to accept it. The Respondent expected him to report for duty whilst his matter was at the Labour Court.
18. He referred to clauses 7.5.1 and 7.5.2 of PILIR Policy. The Respondent requested more information from his Doctor and this was provided. Thereafter, the Respondent became quiet.
19. Under cross examination, the Applicant testified as follows: He had not been to work in 2025 and did not work in 2024. He was not in breach of his contractual obligations. Leave was part of his benefits and he was entitled to a fair working environment. He was entitled to his salary whilst on leave. He was entitled to 36 sick leave days over three years. He was entitled to compensation for procedural unfairness. The matter was both on procedural and substantive unfairness issues. He wanted costs as well.
20. Considering clause 3.1 of the PILLIR Policy, the Director General exercise his discretion based on an investigation outcome. The Respondent had 30 days to give the outcome of his application. If the Respondent failed to give the outcome in 30 days, his application had to be approved.
21. He was entitled to temporary incapacity leave based on his submissions. Clause 7.1.8 of the PILIR Policy stated that an employee had to 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. The Respondent had a duty to remind him as well to submit within 5 working days. If he submitted outside 5 days, the Respondent did not have to process the application and pay him. It was for the Commissioner to decide whether he was entitled to compensation only if the Respondent could not explain why it took more than 30 days to process his leave.
22. In re-examination, the Applicant reiterated that there was a strike in his campus, students threatened his life and called him names and his unfair discrimination case was at labour court. It was unfortunate for the DG to request him to report to campus knowing what happened. If he failed to submit his application within 5 days, his Supervisor was supposed to remind him or charge him if he missed it but this was not done.
23. Clause 7.2.2.1 of the PILIR Policy stated that the Respondent had to verify that the Employee and the Supervisor had signed their relevant part to ensure that the Supervisor returns the form within 5 days for correction.
24. He was not given detailed information by the Risk Manager. His Doctor provided further information responding to Mr. Cropp but there was no further correspondence from the Respondent. The conditions the Respondent put him through caused him to be where he was. When one teaches, he did not expect students to be violent towards him. He had a duty to protect himself. It was not fair for him to be asked if he expected to be paid whilst not working. His Supervisor incited students to be violent towards him.
25. The Applicant’s attorney filed closing arguments which were considered.

The Respondent’s case

26. The Respondent Representative, Mr. Sandile Paul Ngcobo called his first witness, Dr. Suzette Bosset, a General Practitioner from the Health Risk Manager, SOMA. Dr. Bosset testified under oath as follows: She had been a general practitioner for 13 years. Between April 2024 and December 2024, the Respondent’s and SOMA’s service contract was active. SOMA assessed ill health applications and temporary incapacity leave applicants and advised or recommended to the Respondent on whether to approve or not after assessing applications. She was familiar with the PILIR Policy.
27. She considered the Applicant’s temporary incapacity leave application for the period 03 April 2024 to 14 June 2024 period. It reached SOMA on 25 April 2024 and she could not explain the delay. SOMA concluded processing the Applicant’s application on 29 November 2024. The 09 July 2024 to 20 September 2024 temporary incapacity leave period application was received on 25 July 2024 and was finalized on 29 November 2024. It should have been submitted on 18 July 2024. The reason the applications were finalized outside the 30 day time frame was that the applications were sent late and only applications sent within the correct timelines were prioritized. Applicant sent his application to College HR on 16 April 2024 instead of 12 April 2024. Had the Applicant’s application been sent to SOMA Initiative within the timelines, it would have met the required timelines as per PILIR Policy.
28. Even though the applications were submitted late, SOMA did not lower their standards but did assessments the same way.
29. Under cross examination, Dr. Bosset stated that she was a general practitioner and that SOMA Initiative did not have power to decline an application. She had knowledge or background to assess an application and to recommend.
30. It did not need to be another Psychiatrist that assessed the Applicant’s application according to the provisions of PILIR. She did not oppose the Applicant’s doctor but only looked at the appropriateness of the period of leave.
31. There was no re-examination.
32. The Respondent Representative called his 2nd witness, Ms. Thulisile Nxele, the Respondent’s Human Resources Clerk at Umgungundlovu TVET College who testified under oath as follows: She captured leave and gave leave credit information to employees. She received temporary incapacity leave applications from staff. She checked if all was attached and forwarded to head office. She was familiar with the PILIR Policy. She received and processed the Applicant’s temporary incapacity leave applications in 2024.
33. She received the 1st period’s application on 16 April 2024 from the Msunduzi Campus where the Applicant was placed. The Supervisor had not signed. So she took it back to be signed. Once it was signed, she sent it to head office. She received the 2nd period application on 25 July 2024 and sent it to head office on 29 July 2024. The Applicant did not submit within 5 days of being away. The Applicant was gone on 03 April 2024 but submitted on 16 April 2024. For the 2nd period, he was gone on 09 July 2024 but submitted on 25 July 2024. The Applicant was not compliant with PILIR Policy. She received both outcomes on 23 April 2025.
34. Under cross examination, Nxele testified as follows: IT came out that the Applicant signed his form on 20 March 2024 for the 1st leave period. The Applicant was not allowed to change his submission date with his supervisor. She could not dispute that the Applicant submitted his leave application form on 20 March 2024. It was not known what happened to the application between date the Applicant signed and the date Nxele received it. The Applicant’s Supervisor signed on 16 April 2024 the day Nxele gave it to the Applicant’s Supervisor to sign. Nxele received the Applicant’s application from the driver on 16 April 2024. Nxele agreed that the Applicant’s Supervisor received the application on 20 March 2024. There was no form returned to the Applicant for him to correct any mistake.
35. Nxele did not dispute that the Applicant submitted his applications on time and he did not know what happened from his Supervisor to Nxele. He submitted the 2nd period application on 09 July 2024 and there was no communication to him thereafter and he was not responsible for delays thereafter.
36. There was no re-examination
37. The Respondent filed closing arguments which were considered.

ANALYSIS OF EVIDENCE AND ARGUMENT

38. Section 186 (2) of the LRA states that unfair labour practice is an unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the provision of benefits to an employee. In this matter, the Applicant alleged that the Respondent committed unfair labour practice by processing his temporary incapacity leave application outside the 30 day period as per PILIR policy and unreasonably refused to approve his leave when they did not examine him going against his doctor’s findings.
39. The temporary incapacity leave form long period referred to as annexure B signed by the Applicant on pages 4 and 37 of the Applicant’s Bundle contains a warning to any prospective applicant in paragraph 4 that the application is conditional on the assessment of the Risk Manager. It further states that if the application is declined based on the outcome of the investigation, the period of incapacity leave shall be converted to annual leave or unpaid leave.
40. It is common cause that the applications for temporary incapacity leave were unsuccessful. This was communicated to the Applicant through letters by the Assistant Director: HRM & A, Ms. S Gropp on 03 February 2025. The letters indicated the reason for the declining of the applications after a recommendation by SOMA Initiative Health Risk Manager appointed by the Department of Public Service and Administration. The Respondent relied on an investigation that was conducted by medical experts. The Applicant did not provide any medical expert to rebut the Respondent’s medical expert’s testimony. The testimony led did not go to sufficient detail for me to make a finding on whether the Respondent acted unreasonably or not in not approving the Applicant’s temporary incapacity leave. The Applicant had the burden of proof and failed to prove any unfair labour practice conducted by the Respondent in not approving his applications.
41. Another issue to determine is whether the Respondent committed unfair labour practice by processing the Applicant’s application outside the 30 day time frame in contravention of the PILIR Policy. It is common course that the Respondent finalized processing of the Applicant’s temporary incapacity leave on 03 February 2025 when the Applicant signed and submitted his application forms on 20 March 2024 and 09 July 2024 for period 1 and period 2 respectively.
42. The Respondent’s second witness, Nxele conceded that the Applicant had submitted his applications on time but she only received them outside the required 5 day period as the Applicant’s Supervisor only sent them late to her. The form for the 1st period was sent without being signed so that she had to send it back on 16 April 2024 for it to be signed when the Applicant signed and submitted it on 20 March 2024.
43. The Respondent’s 2nd witness, Dr. Bosset testified that SOMA Initiative only prioritized applications that were submitted on time. Since the Applicant’s applications were sent late, they were not prioritized. This led to them begin finalized outside the 30 day period. However, the Applicant did not submit his applications late. Thus, it is my finding that the Respondent committed unfair labour practice by not processing the Applicant’s temporary incapacity leave on time. In the ELRC arbitration awards, ELRC358-20/21 and ELRC210-20/21, the panelists found that the failure to render a decision within the 30-day period and to thereafter attempt to deprive the employee of remuneration in relation to that period, constituted an unfair labour practice.
44. In Popcru and Another v Department of Correctional Services and Another (D642/15) [2016] ZALCD 25 (23 November 2016), Judge Witcher disagreed with the view of earlier labour court judgements that the employee is entitled to relief when the employer does not deal with his PILIR application within the prescribed periods. She came to a different conclusion holding that the 30 day rule cannot on its own entitle the applicant in a PILIR dispute to relief. However, I disagree with this stance because this case does not consider the action the employee would have taken had they been informed on time. The decision being released outside the 30 day period significantly prejudices the employee as they could have converted their leave to annual or unpaid leave. The procedural unfairness committed has a retrospective effect on the life of an employee.
45. Had the Respondent replied timeously, there may be other options open to the employee, which would include an engagement with the employer, as envisaged under section 10 of the 8th schedule to the LRA, with regard to the adaptation of the duties of the employee. Alternatively, proposals could be made in relation to alternative employment. The delay deprived the employee of those opportunities.
46. The purpose of ELRC Resolution 7 of 2001 and PILIR is to ensure that incapacity problems are dealt with in a controlled and orderly manner and resolved within the relevant time frames, which, if followed, would result in temporary incapacity leave being approved/declined, alternatively accommodating the employee within the time frame provided. Where temporary incapacity leave was declined, the employee should be required to return to work. The action of the Respondent prejudiced the Applicant in that he could not react to the outcome of the Respondent timeously.
47. To remedy the situation, it would be just and equitable if the Respondent compensated the Applicant with an amount of R10 000.00 (ten thousand rands) due to the prejudice caused to the Applicant and the financial situation the Applicant finds himself in due to the act of the Respondent.

AWARD

48. The Respondent, the HOD: DHET committed unfair labour practice by processing Mr. T Simamame’s (the Applicant’s) temporary incapacity leave outside the 30 day timeframe.
49. Accordingly, the Respondent is to pay the Applicant compensation of R10 000.00 within 30 days of having been advised of this award.
50. The Respondent did not commit unfair labour practice by not approving the Applicant’s temporary incapacity leave.

Lungisani Mkhize

Arbitrator 15 July 2025
ELRC25-25/26 KZN