IN THE ELRC ARBITRATION
BETWEEN:

NATU obo Nana Sithole “the Applicant”
and
The Department of Education – KZN “the Respondent”

ARBITRATION AWARD

Case Number: ELRC525-23/24KZN

Date of arbitration: 13 December 2023, 12 April 2024, 26 June 2024 & 06 March 2025

Date of award: 08 April 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 06 March 2025 and were finalized after postponements on 13 December 2023, 12 April 2023 and 26 June 2024.
2. The arbitration was held online.
3. The Applicant, Ms. Nana Sithole was present and represented by Ms. Zama Khanyile, a NATU Union Representative. The Respondent, the Head of Department of Education, KwaZulu Natal was represented by Mr. Itumeleng Makhooe, it’s Labour Relations Officer from the Human Resource Management and Development Section.
4. It was decided that the Applicant party would file a founding affidavit on or by 13 March 2025 after which the Respondent party would file an answering affidavit on 18 March 2025. The Applicant party would then file a replying affidavit on 22 March 2025. However, on 17 March 2025, the Respondent Representative, Mr. Itumeleng Makhooe requested an extension to file the answering affidavit on or by 25 March 2025 and it was granted. This meant that the Applicant party had until 29 March 2025 to file the replying affidavit.
5. The proceedings were held in English and manually and digitally recorded.
6. The services of an interpreter were not requested.

ISSUE TO BE DECIDED

7. I am required to determine whether the moneys deducted over 88 months from the Applicant due to unpaid sick leave should be paid back to her or not as the Applicant regarded this action by the Respondent as unfair. If found to be unfair, I must determine appropriate relief.

BACKGROUND

8. The Applicant was employed as an educator with persal number 1719554 since the year 2007 on a permanent post at lmbilane High School under Ulundi District, she occupied the position of a PL1 level, within the KwaZulu-Natal Department of Education.
9. ln 2014 the Applicant took a transfer to Ematabetulu Primary School where she worked for 4 years and left to Demose Primary School at lnanda under Pine-Town district.
10. The Applicant has been employed by the Respondent, offering her services and was employed as such for an interrupted period of 17 years.
11. In 2017, the Applicant became seriously ill and was diagnosed by a treating specialist. She was subsequently admitted to hospital, and during this period, her 36 days of normal sick leave were exhausted while she remained unable to provide services for her employer, herein referred to as the Respondent.
12. Following her diagnosis or ill-health issues, the Applicant was referred by the treating Doctor and underwent medical treatment at hospital in KwaZulu-Natal.
13. From July 2018, the Respondent has unilaterally deducted the sum of R3000.00 (three thousand rands) per month from the Applicant’s salary until 2025, purportedly as reimbursement for an alleged overpayment of salary during the Applicant’s sick leave. The Applicant categorically denied any overpayment of salary.
14. Aggrieved about the unilateral deductions by the Respondent from her salary, the Applicant referred an unfair labour practice dispute to the ELRC on 30 October 2023 under section 186 (2) (b) of the LRA. The ELRC scheduled the matter to be conciliated on 20 November 2023 but it remained unresolved and a certificate of outcome was issued.
15. The Applicant requested that the matter be arbitrated. The ELRC then scheduled the matter to be arbitrated before me on 13 December 2023, 12 April 2024, 26 June 2024 & 06 March 2025 as shown in paragraph [1] of this award.

SUMMARY OF EVIDENCE AND ARGUMENTS

16. 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.

The Applicant’s Case

17. In her affidavit, the Applicant Union Representative, Ms. Zama Khanyile deposed as follows: The Department’s Policy and Procedure Leave and lll-Health Retirement (PlLlR) document outlines provisions for educators who exhaust their normal sick leave during the prescribed leave cycle. Specifically, an educator who, according to the treating medical practitioner, requires to be absent from work due to temporary incapacity may apply for temporary incapacity leave with full pay.
18. The treating specialist’s report confirmed that due to the side effects of the medication, the Applicant struggled to attend work normally. Her health continued to deteriorate since her diagnosis. Throughout this period, the Applicant had diligently submitted leave forms and or annexures in accordance with the PILIR policy to the Respondent.
19. The PILIR document provides for normal sick leave of 36 working days in a sick leave cycle of three years. lf an employee exhausts this leave, the employer may, at their discretion, grant additional incapacity leave, including temporary incapacity leave and, where applicable, permanent incapacity leave. However, such decisions must follow an investigation into the nature and extent of the employee’s incapacity, conducted in accordance with item 10(1) of Schedule 8 of the Labour Relations Act (LRA).
20. During the Applicant’s treatment, she provided sick notes, doctor’s full reports and completed the necessary annexures accordingly, which were furnished to the Department to advise them of her treatment status and whereabouts.
21. ln around October 2024, the Applicant when she had already applied for medical boarding was called for an incapacity meeting where it was discovered that indeed her applications for leave were up to date. A directive for the Respondent to process the Applicant’s application for medical boarding was expeditiously filed and in compliance with the PILIR and LRA provisions.
22. Nonetheless, the Respondent continued with the deductions without the Applicant’s knowledge moreover, the Applicant had no knowledge of what in totality she owed to the employer as she was never notified of the debts.
23. ln the matter at hand, it appeared that the Respondent failed to adhere to the procedural requirements outlined in in the POLICY AND PROCEDURE ON INCAPACITY LEAVE AND ILL-HEALTH RETIREMENT (PILIR) document under paragraph 7.2, specifically that the employer neglected to Register and Verify the Application in that the employer failed to, within five days of receiving the employee’s application for temporary incapacity leave, register the date of receipt and verify all annexures. Any discrepancies should have been promptly addressed, with the application returned to the employee for correction within five working days.
24. The Respondent neglected to forward the Application for Assessment, once verified, the application, along with all necessary attachments, should have been forwarded to the health risk managers for assessment, without alteration.
25. The employer was obligated to conditionally grant up to 29 consecutive working days of temporary incapacity leave with full pay, subject to the health risk manager’s assessment. The employee should have been notified in writing of this conditional approval.
26. lf the health risk manager advised against granting the leave, the employer was required to inform the employee in writing, providing reasons for the decision and allowing the employee an opportunity to lodge a grievance.
27. ln this case, the applicant was not granted these procedural safeguards. She was neither informed of the status of her leave application by the health risk managers she only became aware after the deductions were made from her salary. No notification of the reasons for any deductions that were made from her salary.
28. This lack of communication contravenes Section 34 of the Basic Conditions of Employment Act (BCEA), which mandates that employees be informed of any employer decisions that may adversely affect them. Sec. 34 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) regulates deductions that an employer can make from an employee’s remuneration. The general rule is that a written agreement is required from an employee prior to any deduction being made from their remuneration.
29. Given these procedural failures, the applicant did not consent to the salary deductions, and her rights under the BCEA were infringed and therefore the omission should be treated with a question. The respondent’s failure to comply with these requirements constitutes grounds for the applicant to seek redress, potentially through a formal grievance process or legal action.
30. ln the case – Mpanza and another vs minister of justice and constitutional development and correctional services & others. It was held that there was no law, collective agreement, or award, which authorized the employer to deduct the amounts from the salaries without the written consent of the employees as contemplated in Sec. 34 of the BCEA.
31. The deductions accordingly did not comply with Sec. 34 of the BCEA and were unlawful and the employer was ordered to repay these amounts to the employees. As regards the allegation that the employer’ s withdrawal of the tools of the trade amounted to a lock-out, it was held that this was not a lock-out and, therefore, the only relief for the employee was an interdict of the deductions for April to June 2022 and the repayment of the deductions already made. The employer was still entitled to institute civil proceedings to recover the undue portions of the salary from the employees.
32. There was no replying affidavit from the Applicant Union Representative.

The Respondent’s case

33. The Respondent Representative, Mr. Itumeleng Makhooe filed an answering affidavit and deposed as follows: The Council did not have jurisdiction to entertain the matter as the allegations arose years back. The Applicant slept on the matter as window period within which a referral was made was unreasonable. Large parts of documents could not be traced on time.
34. The investigation in terms of which leave was declined was conducted. Sick notes, doctor’s full reports and annexures were subjected to an assessment by medical experts. The outcome was that the granting of temporary incapacity leave was not advised. The Respondent depended on medical experts.
35. The investigation was conducted by Health Risk Manager and all required documentation was processed. A letter dated 17 September 2018 was sent to the Applicant and her principal informing her that her application for Temporary Incapacity Leave was approved as leave without pay.
36. On 12 April 2024, on Applicant Union Representative’s request, the Respondent sent an email outlining how much the Applicant owed in total and what the balance was at the time.
37. The Respondent Representative’s affidavit contained the following documents as attachments: Emails between himself and Applicant Union Representative on Applicant total moneys owed and balance as at 12 April 2024, 3x Applicant Forms for Temporary Incapacity Leave Long Period, Letter to Applicant and Ematabetulu Primary School Principal giving feedback on Temporary Incapacity Leave Application for Ms. N Sithole and Thandile Health Risk Management partial granting of incapacity leave for the 22 January 2018 to 28 March 2018 period.

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 the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee. In this matter, the Applicant alleged that the Respondent unfairly deducted R3000 for 88 months from the Applicant’s salary. The Applicant sought relief of having the deductions reimbursed by the Respondent.
39. The temporary incapacity leave form long period referred to as annexure B signed by the Applicant 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 application for temporary incapacity leave was unsuccessful. This was communicated to the Applicant and her School Principal through a letter dated 17 September 2018. The letter indicated that the reason was that the applicant’s temporary incapacity leave was declined by Thandile Health Risk Manager. The Respondent relied on an investigation that was conducted by medical experts. This absolves the Respondent from any substantive unfairness in this matter. The Applicant had the burden of proof and did not present any expert witness to indicate that the investigation conducted by Thandile Health Risk Manager was incorrect.
41. Section 34 of the BCEA provides in subsection (1)that An employer may not make any deduction from an employee’s remuneration unless—
    (a) Subject to subsection (2), the employee in writing agrees to the deduction in respect of a debt specified in the agreement; or
    (b) The deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.
    In this case, the deduction is permitted in terms of a law. Firstly, under common law, statute law and an employment contract, there is an obligation on the employee to be at work and to actually work in order to be remunerated. In the absence of an approved temporary incapacity leave for the days in question, the no work no pay common law principle applies.
42. Secondly, in terms of part B12.1 of the PAM, if the correct salary was awarded or granted but at a time when or in circumstances under which it should not have been awarded or granted to him or her, the employer will correct the educator’s salary with effect from the date on which the incorrect salary, or salary advancement commenced, notwithstanding the fact that the educator concerned was unaware that an error had been made in the case where the correction amounts to a reduction of his/her salary.
43. In terms of part B12.2.2 of the PAM, if an Educator contemplated in part B12.1 of the PAM has been overpaid or received any such other benefit not due to him/her, part B12.2.2.1 of the PAM states that an amount equal to the amount of the overpayment will be recovered from him or her by way of the deduction from his/her salary in installments as may be determined by the employer, with due regard to the applicable Treasury Instructions by way of legal proceedings, or partly in the former manner and partly in the latter manner. This applies to the case of the Applicant as when she was paid, it was anticipated that her temporary incapacity leave would be approved but when it was not approved, the paid salary became due to the Respondent. If an educator does not work on a day on which no leave has been granted, she is not entitled to remuneration and any remuneration paid to her for that day is an incorrect overpayment of salary.
44. In Stein v Minister of Education and Training and others1 [2021] JOL 53504 (LC) The Court dealt with a situation where an employee was absent from work without leave, where after the employer deducted the overpayments that were made to him in respect of those days. The Court said
    “Where an employee absent himself from work and fails to submit the leave forms in accordance with the policy, the employer is entitled to withhold payment and in instances where he had already effected it, he or she should be allowed to recover it without the consent of the employee. When the department made payments it did so in firm belief that the employee will account for his absence from work. When he failed submit the forms, the amounts paid in respect of those days constituted an overpayment and susceptible to recovery within the provisions of section 34 (5) in that it was made in circumstances where it was not due i.e. in error….In the circumstance, I have no hesitation in concluding that the employer was justified to deduct the amount paid to the applicant for those days he did not work.” The Applicant’s scenario is identical to the case cited.
45. This principle was confirmed in Holburn v Member of the Executive Council, Department of Education and another (P603/09) [2011] ZALCPE 12 (9 November 2011). The deductions by the Respondent ought to have been known by the Applicant when she was notified that her leave application was unsuccessful due to the warning in paragraph 4 of Annexure B (temporary incapacity leave form long period) that declined leave would be converted to annual leave or unpaid leave.
46. The Applicant had onus to prove that there was unfair labour practice committed by the Respondent. In the Applicant’s deposed affidavit, there were no documents in support of the submissions made other than year 2024 emails between Representatives and the Applicant’s pay slips whilst the deductions were not disputed by the Respondent. There was no evidence that paragraph 7.2 of the Policy and Procedure on Incapacity leave and Ill- Health Retirement was breached as submitted.
47. The Respondent provided documentary evidence to the submissions made in support of its version. Thus, I am persuaded that there was no unfair labour practice committed by the Respondent.

AWARD

48. The Respondent applied section 34 of the BCEA and part B12 of the PAM correctly deducting owed salaries due to the declined Applicant’s temporary incapacity leave for various period.
49. There was not unfair labour practice committed by the Respondent, HOD of the KZN DOE against the Applicant, Ms. Nana Sithole.
50. Accordingly, the Applicant’s case is dismissed.

Lungisani Mkhize

Arbitrator 08 April 2025
ELRC525-23/24 KZN