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23 June 2025 2025 -ELRC280-24/25NW   

Panelist: Clint Enslin
Case No.: ELRC280-24/25NW
Date of Award: 17June 2025

In the ARBITRATION between:

SADTU obo Ontlametse Motitswane
(Union / Applicant)

and

Department of Education: North West

(Respondent)

Applicant’s representative: Mr Tsholofelo Monkwe    
Applicant’s address:        

            Telephone:  0790900477  
Telefax:        
                                                    Email        tmonkwe@sadtu.org.za    

Respondent’s representative:    Mr Billy Seakgosing 
Respondent’s address:       


Telephone:  0829080730  
Telefax:        
Email   dseakgosing@nwpg.gov.za

DETAILS OF HEARING AND REPRESENTATION

  1. This arbitration was held, on-line via Teams, on 11 March 2025 and 22 May 2025. The Applicant, Ms Ontlametse Motitswane, through her Union SADTU, referred an interpretation and application dispute to the ELRC.
  2. The Applicant was initially represented by Mr Vusi Matshelwe, a full time shop steward of SADTU. She was later represented by Mr Tsholofelo Monkwe, a SADTU official as Mr Matshelwe had left the union. The Respondent, Department of Education – North West was represented by Mr Billy Seakgosing, a Dispute Resolution Practitioner of the Respondent.

ISSUE TO BE DECIDED

  1. I am required to determine if the Collective Agreement 7 of 2001 read with the PAM document have been correctly interpreted and applied, and if not;
  2. Determine appropriate relief.

BACKGROUND TO THE ISSUES

  1. The following facts were agreed to between the parties as common cause and there existed no disputes of facts.

5.1 The Applicant is employed, by the Respondent, as a PL 1 Educator at Othaile Primary School.

5.2 She was booked off from work for various periods.

5.3 She was paid for the entire period/s she was booked off.

5.4 She applied for incapacity leave for the period/s she was booked off.

5.5 There was a partial approval, by the Respondent, of the said incapacity leave. (ie. Not all the days were approved.)

5.6 The applicable Collective Agreement relied upon is Collective Agreement 7 of 2001 as well as the PAM document.

  1. Each party handed in a bundle of documents. The Applicant’s bundle was marked “A” and the Respondent’s bundle was marked “R”. The parties agreed that the documents were what they purported to be.
  2. The matter was digitally recorded.
  3. Written closing arguments were received on 3 June 2025.

SURVEY OF EVIDENCE AND ARGUMENT

  1. This award constitutes a brief summary of evidence, arguments and my reasons for the award issued in
    terms of Section 138(7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.

ANALYSIS OF EVIDENCE AND ARGUMENT

Applicant’s case
Ontlametse Motitswane

  1. The Applicant, Ms Ontlametse Motitswane, testified that she had submitted her first application for temporary incapacity leave on 26 May 2023 and it was for the period of 26 May 2023 to 2 November 2023. She received a response to this application on 1 December 2023, despite the letter, containing the response, being dated 24 October 2023. Her second application was made on 15 January 2024 and it was for the period of 15 January 2024 to 14 June 2024. She received a response to this second application on 17 April 2024.
  2. She had referred her dispute to the Council as the Respondent had responded late and if the leave was not approved, they would take the money back. Clause H.5.3.10 at C5 of A was an extract from the PAM document and it read: “The HOD must, within 30 working days after receipt of both the application form and medical certificate, approve or refuse the temporary incapacity leave granted conditionally. In making a decision, the HOD must apply his/her mind to the medical certificate (with or without describing the nature and extent of the illness or injury) medical information/records (if the employee consented to disclosure), the Health Risk Manager’s advice, the information as supplied by the educator and all other relevant information available to the HOD and based thereon approve or refuse the temporary incapacity leave granted conditionally, on conditions the HOD may determine, eg. return to work, etc.” She had not received a response to either of her applications within 30 days. The response to the first application was 11 months late and the response to the second application was 5 months late.
  3. As per page 28 of R, she had been hospitalised from 02 to 18 May 2023 at Bloem Care (Psychiatric Hospital), which is in Bloemfontein. As per the medical certificate, on page 40 of R, she was hospitalised from 06 to 10 March 2023 at Vryburg Private Hospital. The address was for the consulting rooms of the doctor that admitted her to Vryburg Private Hospital. The hospital’s sticker is on the bottom of R page 40.
  4. In relation to her first claim, she had completed the form and signed it on 22 May 2023, per page 23 of R. The doctor had completed the form on page 31 of R on 18 May 2023. She conceded that she could not recall when she had submitted the completed first application form to her supervisor/manager, however, page 33 of R showed that it was signed on 26 May 2023. She agreed that that there were 8 days between 18 May and 26 May 2023. Clause 7.1.8 of the PILIR Policy, dealing with incapacity leave, read: An employee must submit his/her application for temporary incapacity leave personally or through a relative, fellow employee or friend within 5 working days after the first day of absence.” Her supervisor, Mr Seokame, had come to her house and given her the forms, which she had filled in and signed, before he left with them on the same day.
  5. The doctor had given her part of the form on 18 May 2023, when he discharged her. As such, she had signed page 22 of R on 18 May 2023. The rest of the form was brought to her by the supervisor on 22 May 2023. She was not sure when the application reached the district office, but the stamp on page 18 of R was dated 3 August 2023. She agreed that from 18 May 2023 to 3 August 2023 was 67 days and that from 26 May 2023 to 3 August 2023 was 59 days. Page 33 of R, at section F, confirmed that certain documents must be attached to the report for the Healthcare Manager. They, inter alia, include: medical certificate, medical reports (if supplied by employee), blood tests, x-ray results, scan results, ets. (if supplied by employee), additional written motivation (if supplied by employee). She had submitted what she had, which was the medical certificate, medical report and additional written motivation. She agreed that the Deputy Director HR had to compile all the documents and submit same to the Health Risk Manager. Her supervisor (Principal) had signed for the application form on 26 May 2023, per page 33 of R. She was not sure what happened to the application thereafter.
  6. Page 43 of R was the start of the Health Risk Report, where she had been accessed. It was dated 3 October 2023. Page 118 of R was an extract from the PILIR policy and it read at 6.3, under the heading, Role Players, “The Health Risk Manager is an entity of independent multi-disciplinary medical experts, specializing in occupational medicine, appointed by the DPSA to a panel of accredited Health Risk Manager’s and individually contracted by the Employer, to assess and provide advice to the Employer in respect of an employee’s application for incapacity leave and ill-health retirement within specified timeframes. The systems and administrative capacity for handling the volume of forms, as well as the medical knowledge and experience to do incapacity leave and ill-health retirement assessments are the responsibility of the Health Risk Manager. The Health Risk Manager shall supply regular reports to the DPSA and the Employer.” She agreed that the confidential report, per R page 43, etc. was from the Health Risk Manager, who was a role player in the process. She also agreed that between 12 September 2023 and 3 October 2023 there were 21 days.
  7. Page 46 of R was part of the Assessment Report from the Health Risk Manager. Under the heading, Application advised for a certain period, read: “The available information does not validate the full period of temporary incapacity leave applied for and only a partial period of temporary incapacity leave can be justified.” The Assessor had given her the reason why the temporary incapacity leave was not fully approved. Page 48 of R was the letter containing the District Director’s response, dated 24 October 2023. She agreed that there were 21 days between 3 October 2023 and 24 October 2023.
  8. Page 118 of R (PILIR Policy), at paragraph 6.4, read at the last sentence: “The Employer shall, within the scope of his/her authority and with due consideration of the Health Risk Manager’s advice, take a final decision on an employee’s application for incapacity leave and/or ill-health retirement.” Despite the response letter being dated 24 October 2024, she was only informed of the outcome on 1 December 2023. Page 119 of R (PILAR Policy) at paragraph 7.1.1 read: “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 PILIR.”
  9. The application form for the second period of 15 January 2024 to 14 June 2024 was on page 66 of R. She had completed it on 19 January 2024. This same date is on pages 67 and 68 of R. As per page 77 of R, her supervisor had also signed the forms on 19 January 2024. The stamp on page 62 of R, indicating when the district office received the form, is dated 28 February 2024. She agreed that there were 40 days between 19 January 2024 and 28 February 2024. She had signed and submitted the form, however, she did not know what happened to it thereafter or whether the district office received it in time.
  10. Page 110 of R formed part of the confidential doctor’s report. The first paragraph of this report read: “The evaluator is of the opinion that the client is a candidate for alternative placement, at present. The client’s husband and children reside in Bloemfontein, which forms a significant part of her support system.” Page 104 of R (part of the same confidential doctor’s report) states that she had never requested a transfer, she, however, did not agree with this. She had not lost salary of benefits from 15 January 2024 to 14 June 2024. She agreed that as per page 113 of R, the writer of the report had the right to change the report if new information was supplied. She further agreed that the employer has the right to approve or not to approve incapacity leave.
  11. Page 123 of R (part of PILIR Policy), at paragraph 7.2.10.2, it confirmed that if the employer refused the temporary incapacity leave granted conditionally, they needed to notify the employee in writing of the refusal and of the reasons for same. She agreed further that the employer had complied with this. She confirmed that she did not have any capped leave days. Page 131 of R (part of PILIR Policy) confirmed that if the temporary incapacity leave, granted conditionally, has been refused, the employee must notify the employer, in writing, within 5 working days of the notice to him/her whether or not the period must be converted by annual leave or unpaid leave and if the employee fails to notify the employer of his/her choice, it would be unpaid. She agreed that if the employer recovered a non-approved period, it would be in compliance with the aforementioned part of the policy.
  12. No one had raised any issue of lateness, regarding the 5 days to submit. It was now the first time she had heard of same. She had, however, submitted the forms within the required 5 day period. She had submitted it to the school principal. She believed that the principal had to submit it to HR. Page 120 of R (Pert of PILIR policy) at paragraph 7.1.9.1 it was confirmed that if the employee failed to submit the form within time, the employee’s manager/supervisor had to immediately notify the employee that if such application was not received within 2 working days, the sick leave period would be deemed to be leave without pay. The dates that the Respondent claims to have received the applications until the dates she was informed of the outcome also exceed the 30 period per PAM. She had never been asked to respond in relation to whether the unapproved period should be annual or unpaid, as per page 131 of R. She believed the employer should not deduct the monies for the days that were declined, as they had not informed her of same in time.

Moeti Seokame

  1. Mr Seokame testified that he was currently a pensioner. He was previously the principal of Othaile Primary School. The Applicant was an educator at their school. The document on page 33 of R was part of the Applicant’s leave application. His role, as principal, in an application for temporary incapacity leave was that when an educator was given leave by a doctor, he needed to read the document and check the dates. He then had to make a recommendation and sign the form and submit it to the circuit office for the attention of the Circuit Manager. His Circuit Manager was Mr Mothibi. The Circuit manager submits the form to HR. He had signed page 33 of R on 26 May 2023 and submitted it on the same day. Per page 48 of R, the outcome was prepared by the District Director on 24 October 2023.
  2. He had signed the second application, on page 77 of R, on 19 January 2024. Usually it would be submitted by him on the same day. The response to the second application, per page 141 of R, dated is 23 April 2024. He had therefore submitted it in January and the employer had responded in April. Bundle A at B3 was ELRC Resolution 7 of 2001. At B15, paragraph 9.4 (part of ELRC Resolution 7 of 2001) it confirmed that the HOD could grant a maximum of 30 consecutive working days leave with full pay during which period an investigation had to be conducted into the nature and extent of the incapacity. This timeframe was not complied with by the employer in either application.
  3. He had taken the form, on page 33 of R to the Applicant at her home, on 22 May 2023, as she was sick. He had received it back from her on the same day. He had only signed it on 26 May 2023 as the circuit office was approximately 75km away from the school and it therefore took 4 to 5 days to submit. He did not have evidence to show that he had submitted it to the circuit manager on said date. He assumed that the document on page 48 of R (outcome by District Director) was prepared by the District Director on 24 October 2023, as this was the date on the said document. He believed that the 30 day period for response, should be counted from 26 May 2023, when he submitted the documents. HR was responsible to process the applications.
  4. He disputed that the 30 days was to be counted from when HR received the application. It had to go to the Sub District, then the District where HR was. There could be a day or so between Sub District and District and also HR may have a number of applications to deal with causing a delay. He believed the 30 days ran from when HR got a chance to look at the form, however, he was not aware of any provisions in PAM confirming this. He was also not aware of any policy stating when he needed to submit the forms, as principal. The employer was required to conduct a physical investigation. He agreed that the employer had a discretion to approve or not approve additional sick leave and that they could recover monies for leave not approved.
  5. The Respondent did not call any witnesses.

ANALYSIS OF EVIDENCE AND ARGUMENT

  1. Despite various other issues having been dealt with by the parties, the Applicant’s case/argument is that the portion/s of her temporary incapacity leave that was not approved, should not be deducted as she was not informed in time (see paragraph 21 above.) In support of this she seeks to rely on Collective Agreement 7 of 2001 as well as PAM (Bundle A, C5 at paragraph H.5.3.10). She argueed that in terms of thereof, the HOD had 30 working days to grant or refuse her temporary incapacity leave. She was only informed of this outcome outside the said 30 working day period.
  2. Clause 9.4 of ELRC Resolution 7 of 2001, which deals with temporary incapacity, reads: ‘The Head of Department may grant a maximum of 30 consecutive working days leave with full pay during which period an investigation must be conducted into the nature and extent of the incapacity. The investigation shall be conducted in accordance with item 10(1) of Schedule 8 of the Labour Relations Act, 1995.”
  3. Clause H.5.3.10 of PAM reads as follows: “The HOD must, within 30 working days after receipt of both the application form and medical certificate, approve or refuse the temporary incapacity leave granted conditionally. (Own highlighting.) In making a decision, the HOD must apply his/her mind to the medical certificate (with or without it describing the nature and extent of the illness or injury) medical information/records (if the employee consented to disclosure), the Health Risk Manager’s advice, the information as supplied by the educator and all other relevant information available to the HOD and based thereon approve or refuse the temporary incapacity leave granted conditionally, on conditions that the HOD may determine, e.g. return to work, etc. The Policy and Procedure on Incapacity Leave and Ill-Health Retirement (PILIR Policy) also need consideration, despite it essentially being incorporated in PAM.
  4. There was no evidence or argument put forward, by the Applicant, that the Respondent’s conclusion, to the effect that certain portions of her temporary incapacity leave needed to be declined, was incorrect. She agreed that the Respondent had a discretion to either grant or decline same. What she claimed is that the Respondent had 30 working days to inform her of his/her decision to approve or decline the conditionally granted temporary incapacity leave. By failing to comply with this time period, the Respondent should not be allowed to deduct the monies from her for the periods/portions which were not approved.
  5. The Respondent firstly seems to argue that the 30 working day period, set out in Clause H.5.3.10 of PAM starts running from when the HR Department receives the application and that the Respondent therefore acted within the timeframes and/or as required. I can find no support for this contention either in ELRC Resolution 7 of 2001 or PAM. Clause H.5.3.10 of PAM in fact says “The HOD must, within 30 working days after receipt of both the application form and medical certificate, approve or refuse the temporary incapacity leave granted conditionally…..” To my mind this does not refer to when the HOD himself/herself actually receives it on their desk, but rather to when the application form and medical certificate are received by the Respondent, of which the HOD is the head for purposes of such applications. The undisputed evidence, as confirmed by the ex-principal of the school where the Applicant works, was that the said documents were handed over to the principal and that he immediately, or at least soon thereafter sent same to the District Manager. The principal is the Applicant’s supervisor/manager. The first line for the Respondent. As such, I am of the view that 30 working day period referred to above runs from when the principal received the forms and medical certificate. To argue otherwise would, to my mind, defeat what appears to be the purpose of Clause H.5.3.10 of PAM, which I believe is the be speedy handling of such processes so that both parties know where they stand as soon as possible.
  6. Secondly, the Respondent argued that the applications were submitted late by the Applicant. Clause H.5.3.6 of PAM reads: “An educator must submit an application for temporary incapacity leave personally or through a relative, fellow educator or friend within 5 working days after the first day of absence.” Clause H.5.3.7 of PAM reads: “If the educator fails to submit an application for temporary incapacity leave within the prescribed 5 working days, the following measures will apply: H.5.3.7.1 “The educator’s manager/supervisor must immediately notify the employee that if such application is not received within 2 working days, the sick leave period will be deemed to be leave without pay. If the educator fails to submit the application on time or compelling reasons why an application cannot be submitted, the supervisor/manager must immediately inform the Human Resources division and the relevant authority will approve such absence as unpaid leave or annual leave if the educator consents………”
  7. If the application is not submitted within the required timeframe the applicant’s supervisor/manager is required to inform the Applicant of same as per the above. There is no evidence of this having happened. The first application was submitted 26 May 2023 and it was for the period of 26 May 2023 to 2 November 2023. The second application form for the second period of 15 January 2024 to 14 June 2024 was submitted on 19 January 2024. These submission dates are supported by both the testimony of Mr Seokame as well as his signature and date on said forms. I cannot therefore agree with the Respondent’s submission that the submissions were late, outside the allowable 5 working day period. Even if I am wrong in this, which I do not believe I am, disciplinary action could have been taken against the Applicant and/or her supervisor. Her supervisor also needed to request same from her if it was late, which he did not. The process, in my view, begins with the Applicant’s submission of the application and medical certificate to her supervisor/manager, which she did. Also, if it was late, the 30 working day period for a decision to be taken would only run from when the form and medical certificate were eventually submitted. If the applications were late, which as stated I do not believe they were, it would still not justify the delay in response/outcome being made known to the Applicant.
  8. She handed in the first application on 26 May 2023 and it was for the period of 26 May 2023 to 2 November 2023. She received a response to this application on 1 December 2023, despite the letter, containing the response, being dated 24 October 2023. Clearly this is substantially outside the 30 working day period prescribed. She handed in the second application on 19 January 2024 and it was for the period of 15 January 2024 to 14 June 2024. She received a response to this second application on 17 April 2024. Clearly this is also substantially outside the 30 working day period prescribed. She cannot be held accountable or suffer prejudice as a result of a delay within the process of the Respondent.
  9. Thirdly, the Respondent argues that it is a discretion of the employer to grant or refuse temporary incapacity leave. This submission is correct, however, it is by now trite that any discretion exercised by an employer that effects an employee must be exercised in a fair, reasonable and non-arbitrary manner. In my view, part of exercising such discretion in a fair, reasonable and non-arbitrary manner includes complying with requirements such as timeframes. In PSA and HC Gouvea v Commissioner R Lyster NO and Department of Land Affairs (D751/09) [2013] ZALCD 3 (26 February 2013), the Labour Court in dealing with an employer’s failure to comply with the time period of 30 working days in paragraph 7.5.1(b) for Temporary Incapacity Leave (‘TIL”) held that the fact that the decision had a retrospective affect, “amounts to an unreasonable and arbitrary exercise of a discretion with unfair consequences to the Applicant.”
  10. In accordance with the abovementioned decision, of the Labour Court, where an employee’s application is declined outside of the 30 working day period (as is the case in this matter), and acts to prejudice the employee, (declining the TIL, or part thereof, and the recovery of salary paid to the employee, from said employee, while awaiting the outcome of the TIL application) the fact that the decision has retrospective effect ““amounts to an unreasonable and arbitrary exercise of a discretion with unfair consequences to the Applicant.”
  11. The fact that employees are aware that their applications for TIL may be declined, and that they have no right other than a right that their application be properly and fairly considered, does not affect the issue as it is the retrospective affect that renders the decision to decline TIL an unreasonable and arbitrary exercise of a discretion with unfair consequences to the employee.
  12. In terms of section 138(9) of the LRA “[a] commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award-
    (a) that gives effect to any collective agreement,
    (b) that gives effect to the provisions and primary objects of this Act,
    (c) that includes, or is in the form of a declaratory order.”

In view of all the above, I make the following award.

AWARD

  1. The Respondent, the Department of Education: North West, failed to comply with the provisions of ELRC Resolution 7 of 2001, read with PAM, in declining portions of the Applicant, Ms Ontlametse Motitswane’s, application for temporary incapacity leave for the periods 26 May 2023 to 2 November 2023 and 15 January 2024 to 14 June 2024 (these periods were only partially approved).
  2. The Respondent, Department of Education: North West, is accordingly not entitled to deduct any monies from the Applicant’s, Ms Ontlametse Motitswane, salary paid to her in respect of the non-approved portions of the periods of claims set out in paragraph 39 above and must repay any deduction that may have been made in this regard, if such deductions have already commenced.
  3. In the event that monies have already been deducted, same should be paid back to the Applicant in terms of paragraph 40 above, by no later than 31 July 2025.

Clint Enslin
(ELRC) Arbitrator