In the matter between

NAPTOSA obo Panday, BB Applicant
And
Department of Education KZN Respondent

ARBITRATOR: R. Shanker

DELIVERED: 22 September 2019

DEFAULT AWARD

DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for an arbitration hearing on 27 August 2019 at the Department of Education office in Pietermaritzburg.
2. Prior to the commencement of the arbitration, the parties agreed that the facts in this dispute are common cause and that it is not necessary for either party to lead any evidence.
3. The parties agreed that the matter be determined on their written arguments to be submitted as follows: Applicant by 02 September 2019, respondent by 09 September 2019 and applicant to reply by 12 September 2019.
4. By 12 September 2019, only the applicant submitted written argument and at the time of writing this award on 22 September 2019, the respondent’s written argument had still not been received.
5. The dispute concerns an unfair labour practice brought in terms of section 186(2)(a) of the Labour Relations Act, 1995 specifically relating to the provision of benefits.

ISSUES TO BE DECIDED
6. Whether the conduct of the respondent in declining the applicant’s temporary incapacity leave for a period of 19 days during 04 August 2017 to 29 September 2017 and deducting it from the applicant’s capped leave, was unfair.

ARGUMENT
7. The following is a summary of the applicant’s argument.
8. The applicant was employed as an educator. On 11 May 2017, she fell at school and injured her right leg and her right wrist. She attempted to self-medicate however the injuries sustained and particularly her right knee became more severe and she visited her JP on the 06 June 2017. She had an arthroscopy done to right knee on 20 July 2017. During her post recovery period until 28 July 2017, she utilised five (5) days sick leave of the 24 days that she had accrued with the balance of days falling within the July school holidays. She thereafter returned to work for a period of four (4) days until 03 August 2017.
9. She required a further recovery period of 39 days from 04 August 2017 to 29 September 2017. Of that, she utilised 19 school days (04 – 31 August 2017) as sick leave and she requested Temporary Incapacity Leave for the balance (01 – 29 September 2017) as her sick leave was exhausted.
10. She returned to work on 09 October 2017. On 05 December 2017, she received a notification from Ngidi that the temporary incapacity leave that she had applied for was deemed excessive for her condition and that a further motivation was required from a Doctor. She submitted a dispute to Nduli on 19 January 2018 and on 22 January 2018, she submitted medical submissions from specialists as well as x-rays, medical aid statements and a letter of motivation. She however received a notification from Khanyile stating that the resubmission of her application for Temporary Incapacity Leave was still deemed excessive. The letter was however full of errors.
11. On 19 April 2018, she received a call informing her that the employer was going to make deductions from her salary in May 2018 in respect of the temporary incapacity leave application. On the same day, she handed in a letter authorizing the employer to deduct the temporary incapacity leave from her capped leave as she could not afford to have deductions made from my salary. On 16 May 2018, the temporary incapacity leave that she applied for was deducted from capped leave.
12. The applicant also argued that the respondent had failed to comply with section 7.2.9 of PILIR. In terms of the said section, the respondent was required to inform the applicant of the outcome of her application for temporary incapacity leave within 30 days but had done so only six (6) months later.
13. As relief, the applicant requested that no deductions be made from her salary or her capped leave and that the deduction that was made be returned back to her.
14. There was no written argument received from the respondent.

ANALYSIS OF EVIDENCE AND ARGUMENTS
15. The respondent did not submit written argument.
16. The parties agreed that the facts in this matter are common cause. The applicant set out the facts in this matter in detail as reflected above. In the absence of any opposition from the respondent, I accept the facts as presented by the applicant.
17. On the applicant’s version, she submitted all the necessary information to the respondent for her application in respect of the temporary incapacity leave to be granted, including medical submissions from specialists as well as x-rays, medical aid statements and a letter of motivation. The applicant has, in my view, presented a reasonable case on face value as to why the application should have been granted. She also provided a reasonable explanation as to why she handed in a letter authorizing the employer to deduct the temporary incapacity leave from her capped leave. Having done so, the evidentiary burden then shifts on the respondent to show that there were valid reasons why the application was refused.
18. Critical to the determination of this matter is, therefore, the reasons why the respondent had refused to grant the applicant paid temporary incapacity leave. In the absence of such reasons from the respondent, I accept that it was unfair for the respondent to deduct the said leave from the applicant’s uncapped leave.
19. It is clear from the applicant’s submissions also that, by taking six (6) months to inform the applicant of the outcome of her application for temporary incapacity leave, the respondent had failed to comply with section 7.2.9 of PILIR.
20. For reasons mentioned above, I find that the conduct of the respondent in declining the applicant’s temporary incapacity leave for a period of 19 days during 04 August 2017 to 29 September 2017 and deducting it from the applicant’s capped leave, was unfair. As a result, I have no hesitation in granting the applicant the relief sort.

Award
21. In the circumstances I make the following award:
21.1. The conduct of the Department of Education – KZN in deducting the period of 19 days leave from the applicant’s capped leave entitlement, during May 2018 and in respect of which the applicant had applied for temporary incapacity leave, is unfair
21.2. The respondent is accordingly ordered to return the period of 19 days leave mentioned in paragraph 21.2 above to the applicant’s capped leave entitlement within 30 days of receiving this award.
21.3. The respondent is also ordered not to make any monetary deduction from the applicant’s salary in respect of the period mention in paragraph 21.1 above.
21.4. There is no order as to costs.

Raj Shanker
Senior ELRC Arbitrator
Kwazulu Natal