In the matter between

SADTU obo N M Magongo
(Applicant)

And

The Department of Education Eastern Cape
(Respondent)

Union/Applicant’s representative:

Thamsanqa Nkonki

Telephone: 063 502 1873
Telefax:
E-mail:

Respondent’s representative:
Respondent’s address: Annalie Slabbert

Telephone: 071 894 8607
Telefax:
E-mail: Ansie68@mweb.co.za

Details of hearing and representation

1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995, as amended, (the LRA), was held at the offices of the Department of Education, Port Elizabeth, on 30 August 2019 and 01 October 2019.

2 The applicant, Ms Magongo, was represented by Mr Nkonki, and official of the South African Democratic Teachers Union (SADTU). The respondent, the Department of Education, Eastern Cape, was represented by Ms Slabbert, an Employee Relations Manager of the Respondent.

3 The hearing was held in English and was digitally and manually recorded.

4 After the parties exchanged documents and had an opportunity to peruse same, documents were accepted into evidence on the basis that the documents are what they purports to be.

5 The parties agreed to submit closing arguments in writing by no later than 08 October 2019, both parties did so.

Issue to be decided

6 It is to be decided whether the Respondent committed an unfair labour practice as envisaged in Section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended, (the LRA), and if so, to determine the appropriate relief.

Background to the matter

7. It is important to note that the matter was scheduled before Commissioner Howden on 15 March 2019 under case number PSES746-19/18EC as a Section 24 of the LRA dispute ,in terms of the interpretation and application of a collective agreement whereat he issue a ruling pertaining to the disclosure of documents.

8. The matter before me under case number PSES111-19/20EC pertains to an alleged unfair labour practice dispute in terms of Section 186(2) of the LRA. It will appear that the dispute under case number PSES746-18/19EC was withdrawn and a fresh dispute referred as the certificate of non-resolution was issued under case number PSES111-19/20EC whereat condonation for the late referral was granted.

9. The Applicant allegedly applied for sick leave and temporary incapacity leave and in December 2016 the Respondent start to deduct from the Applicants salary, R4000.00 per month. The Applicant met with the Respondent during 2017 and were never addressed on the issue, and they referred a dispute during early 2019 as an interpretation and or application of a collective agreement.

10. The Applicant sought for the Respondent to stop making those deductions and repay to the Applicant what was already deducted from her salary.

Summary of submissions and argument

11. This is a summary and does not reflect all of the arguments heard and considered in reaching a decision.

Applicants evidence and argument

12. The Applicant testified that she is employed by the Respondent as an educator and applied for sick leave from 06 June 2016 to 26 June 2016, and for temporary incapacity leave (TIL) from 18 July 2016 to 30 September 2016. She submitted all the relevant documentation to the school principal who brought me a new application in terms of temporary incapacity leave after he was told by the Respondent, that the incorrect documents were completed.

13. The Applicant testified that the first period she applied for was normal sick leave, and she was surprised that the two periods were combined and now being deducted from her salary without being notified accordingly.

14. Mr Maarman testified that he is employed by the Respondent as the school principal and that the Applicant reports directly to him. When educators apply for leave, they must complete a leave application form with the necessary supporting documents, like doctors’ notes and or medical reports.

15. He further testified that the Applicant furnished him with all the documents and that he took all the documents to the district office and submit them to Ms Ras. At the time he enquired about the substitute teachers payment, he was advised that no leave for the Applicant was captured and was referred back to Ms Ras who in turn advised him that the incorrect leave forms for the temporary incapacity leave were concluded and that visit the Applicant at home whereat the correct forms were completed and submitted the same day.

16. Mr Maarman also testified that he was told that the leave applications should be filed 7 days after the person took the leave and that they approved the substitutes payment after he signed that the Applicants leave should be treated as unpaid leave. He further stated that he was under the impression that the Applicant will only be punished for the number of days that she was late with her submissions but that he does believe that the application was late.

17. He further testified that when he became aware of the deduction, he approached the district office to have the deduction reversed as it impacted negatively on the Applicant as she was not notified about the deduction and that the deduction includes both periods.

18. Under cross examination, Mr Maarman confirmed that he should not have signed the letter on page 1 of the Respondents bundle wherein he gave permission for the Applicants leave to be treated as unpaid leave after he tried to contact her and after 7 days had expired.

19. He further confirmed that he has no proof that he submitted the application forms and did not took with a book where recipients of documents need to sign to confirm receipt.

20. It was also confirmed that he was aware of the document on page 2 of the Respondents bundle where Ms Ras indicate that the ZI leave form must be completed and that the letter was dated 23 August 2016.

21. Under re-examination, Mr Maarman stated that if he did not sign for the unpaid leave, the substitute would not have been paid.

Respondents evidence and argument

22. Ms Ras testified that she is employed by the Respondents as a Principal Personnel Officer in the leave section since 2012.

23. Ms Ras further testified on page 67 of the Respondents bundle, which relates to Personnel Administration Measures (PAM) and in short states that an educator must submit an application for temporary incapacity leave within 7 days, otherwise, under normal circumstances, if this is not complied with, the period of absence will be deemed as unpaid leave.

24. She testified that she did not receive a medical certificate for the period 06 June 2016 to 24 June 2016 and that she only received a medical certificate for the period 18 July 2016 to 30 September 2016, and no applications for any of the two periods.

25. After she received the medical certificate, she issued the letter on page 2 of the Respondents bundle wherein she stated that the last leave captured for the Applicant was in 2010, and that if this is her first time to apply for leave, leave form Z1 for 36 days must be completed together with Annexure A. Ms Ras also testified that an educator must first exhaust all 36 days of normal sick leave before they may apply for TIL.

26. Ms Ras further testified that she was unaware that the Applicant took leave from 06 June 2016, and on that basis, the applicable forms to complete would be Annexure B, instead of A, and as of 31 October 2016, she still had not received any application. Mr Maarman signed the approval for unpaid leave in order to get the substitute educator paid as there were no documents received from the Applicant. Ms Ras also stated that Mr Maarman said he was struggling to get the documents from the Applicant and that he had no form with him at the time.

27. Ms Ras also testified that the Applicant was 3 months late with the medical certificate and no application was ever received regarding temporary incapacity leave, and thus, it could never have been approved, or declined.

28. She testified that the Applicant was never notified of the deductions and that the unpaid leave was implemented on 31 October 2016 and that the Applicants Annexure B application in the Respondents bundle was signed on 10 August 2016.

29. Ms Ras further confirmed that the Applicant had 36 days sick leave available to her at the time she took the sick leave.

Analysis

30. Section 186(2)(a) of the LRA states that an unfair labour practice means any unfair act or omission that arises between an employer and employee involving unfair conduct by the employer and an employee relating to benefits.

31. It is important to note that the arbitrator is tasked to establish the true nature of the dispute and that the referral is merely a referral and not pleadings. The facts regarding this matter in short is as follows.

32. When analysing evidence, it involves findings of fact based on an assessment of credibility and the probabilities and an assessment of the applicable rules in the light of those findings. In determining the most probable version requires a formulation of the contending versions and a weighing up of those versions to determine which is more probable.

33. In this matter, there are two mutually destructive versions, Mr Maarman stated he submitted the documents to Ms Ras, and Ms Ras stated that no documents were ever submitted in terms of the Applicants claims for sick leave.

34. The following were confirmed through documentary evidence. Mr Maarman, enquired about the substitutes payment and then signed a document on page 1 of the Respondents bundle on 31 October 2016 wherein he wrote; “Ï have phoned the educator (Ms Magongo) to submit both Annexure A & B, she submitted them late (after 7 days she has been booked off)” and wherein he confirmed that she was away from work from 6June 2016 to 30 September 2016.

35. Ms Ras notified Mr Maarman on 23 August 2016 which documents should be completed through a note reflected on page 2 of the Respondents bundle which reads; “There was last leave captured in 2010. If this is her first time of sickness, leave form Z1 for 36 days must be completed together with Annexure A.” The Applicant in closing argued that Ms Ras was not a credible witness, I disagree, there was no reason provided in argument for that statement. However, I find her to be a reliable witness as she had first-hand knowledge of what transpired between her and Mr Maarman at the time.

36. The Applicant went on leave from 6 June 2016 and again on 18 July 2016. No evidence was provided in the form of an application for or a doctor’s note that confirms the period from 06 June 2016. The Principals evidence was that they make copies before they submit documents to the Provincial office. If the Applicants version was that she submitted all documents to Mr Maarman who confirmed this. The problem with those versions are that they are not supported through any sick notes from a medical practitioner. That would be the obvious proof. It can be argued that the department lost the documents. If that was so, the copies made by Mr Maarman would suffice. No evidence was led that he did not make any copies in this instance. Thus, on a balance of probabilities, neither the Applicant not Mr Maarman submitted any documents for the period starting 06 June 2016.

37. Now turning to the period 18 July 2016. Ms Ras testified that on or about the time that she wrote the note on the document contained on page 2 of the Respondents bundle on 23 August 2016 was the time the doctor’s note was submitted to her without an application, hence the note. It is the Applicants version that the second period was for temporary incapacity leave and if so, the provisions in terms of PAM would prevail, that is, submissions to be made after 7 days. If one needs to apply those principles, the application should have been made by no later than 26 July 2016, yet the note stating which documents should be completed were written on 23 August 2016, that is almost a month after the 7 days. That being said, it cannot be otherwise but that if there were an application, that it did not comply with the provisions of PAM.

38. That being said, what struck me as strange is that, by the time the principal authorised the unpaid leave, it was a month after the Applicant already returned to work, therefore, he was fully aware that her absence will be treated as unpaid. No reasonable person in a leadership role can authorised one of his subordinates’ period of absence to be treated as unpaid, if he was so certain that all documents were submitted for processing. The principals evidence amounts to misrepresentation and cannot be accepted. The Applicants argument was that he did not want to sign for it and did so under duress to get the substitute educator paid.

39. This argument can’t stand, if that had to be accepted, Mr Maarman is unfit to be employed in a leadership role. He consciously accepted the proposal from Ms Ras to state write conform that no documents were submitted. On a balance of probabilities, this is the only version that can be accepted as the probable facts of events that transpired. On the acceptance of this, the issue of TIL is not before me as no application was made. A dispute in terms of TIL can only be before me if there were some form of omission or action from the Respondents side in terms of approval and payment after an application was made timeously.

40. Now turning to the issue of sick leave. The dispute about the sick leave and the deductions from the Applicants salary falls within the ambit of an unfair labour practice dispute as the Applicant has a right to 36 days paid sick leave per three-year cycle in terms of a collective agreement. It was Ms Ras evidence that the Applicant had to her disposal, 36 days sick leave at the time, and on or about 28 August 2016, she was furnished with a copy of the sick note for that period. Due to the Mr Maarman’s submissions that the Applicant had been away already from 06 June 2016, it was decided that she must apply for TIL. On 31 October 2016, some two months later, it was decided that the Applicants period of absence should be treated as unpaid leave.

41. Ms Ras evidence that a person must first exhaust all sick leave, before they may apply for TIL. The Respondent only led evidence in term of the procedure related to a TIL application. In terms of sick leave, the Basic Conditions of Employment Act 75 of 1997 (the BCEA), as amended, creates the minimum requirements for sick leave. Section 22(5)(a) of the BCEA states that an employer must pay an employee for days sick leave the wage that the employee would ordinarily receive on proof that the employee was sick. On that basis, and the fact that a medical certificate was produced, and the Applicant had 36 days sick leave at her disposal at the time, a period of 36 days starting from 18 July 2016 to 30 September 2016 should be treated as paid sick leave.

42. Furthermore, parties were silent on the period between 24 June 2016 and 18 July 2016. I assume that it was school holiday during that period, however, that period cannot be calculated as unpaid leave as per the authorisation letter signed by Mr Maarman. Therefore, the period from 24 June to 18 July should be treated as paid annual leave

43. I conclude that the Respondent committed an unfair labour practice when they denied the Applicant her 36 days paid sick leave as well the period for paid annual leave.

44. The Applicant earned a gross salary of R27176.25 per month, divided by 4.33 = R6276.27 per week. The Applicant had 7.2 weeks paid sick leave at her disposal at the time = R6276.27 x 7.2 = R45 189.14 due to the Applicant in respect of sick leave. Furthermore, the period 24 June 2016 to 18 July 2016 constitutes three weeks of paid leave which equates to R6276.27 x 3 = R18 1828.81.

45. In light of the above, I find it appropriate to make the following award.

Award

46. That the Respondent, the Department of Education, Eastern Cape, through its failure to treat the Applicant, Ms N M Magongo’s, 36 days of sick leave due to her for the period 18 July 2016 to 30 September 2016 as paid sick leave and the period 24 June 2016 to 18 July 2016 as paid annual leave constitutes an unfair labour practice as envisaged in terms of section 186(2)(a) of the LRA.

47. The Respondent is ordered to pay the Applicant the amount of R45 189.14 due to her in respect of the 36 days of sick leave by no later than 29 November 2019.

48. The Respondent is further ordered to pay the Applicant the amount of R18 828.81 in respect of the period 24 June 2016 to 18 July 2016 regarded as annual leave by no later than 29 November 2019.

49. The Applicant is not entitled to any relief in respect of the periods not covered in paragraphs 46 and 47 herein above.

Signature:

Commissioner: HENK JACOBS