24 April 2026 -ELRC919-25/26NW

ARBITRATION AWARD

IN THE MATTER BETWEEN: ELRC919-25/26NW

FIKILE LOVEMORE SHABANGU APPLICANT

And

EDUCATION DEPARTMENT OF NORTH-WEST (ORBIT COLLEGE) RESPONDENT

DETAILS OF THE HEARING AND REPRESENTATION
1.1. The arbitration hearing into an alleged Unfair Labour Practice, referred to in terms of section 186(2) of the Labour Relations Act 66 of 1995, as amended was finalized on 13 April 2026.
1.2. Both parties attended the proceedings. The respondent was represented by Sibongiseni Mbutho, while the applicant was represented by Samuel Monyeki, union official from SADTU.
1.3. The hearing was held in English and was digitally recorded.

ISSUES TO BE DECIDED
2.1. Whether or not the decision of the respondent not to approve the applicant’s application for temporary incapacity leave was substantively fair.
2.2. If the non-approval of the leave was substantively unfair, I must determine appropriate relief in terms of section 193 of the Labour Relations Act 66 of 1995, as amended.

BACKGROUND TO THE ISSUES
3.1. The applicant applied for temporary incapacity leave for two days, 21 and 22 October 2024, and it was declined on two occasions.
3.2. Prior to the commencement of the proceedings, the applicant submitted bundle of documents marked “A”, while the respondent did not submit any documents.
3.3. The applicant closed her case after leading his own evidence, while the respondent closed its case after leading the evidence of one witness.
3.4. Both parties submitted written closing arguments on the agreed date and time.

SUMMARY OF EVIDENCE AND ARGUMENTS
4.1. The following is a summary of only relevant evidence submitted by both parties and which was considered to arrive at a decision in the matter.

THE APPLICANT’S CASE
5.1. The applicant, Fikile Lovemore Shabangu, testified that on 25 October 2024, she applied for temporary incapacity leave for two days (21 and 22 October 2024). On 12 June 2025, she received a letter from the respondent stating that her application for the temporary incapacity leave has been declined. On 17 June 2025, she submitted a request to the respondent to reconsider its rejection of her first application. In her second application, she had attached the doctor’s detailed report of her medical condition and the blood test results. On 22 October 2025, she received a second rejection of her application. In its second rejection, the respondent acknowledged receiving new information, the doctor’s detailed report of her medical condition and blood test results, which was not attached to her first application. The reason provided for the second rejection is that the attending doctor did not provide additional information regarding the extent of the functional limitation associated with her condition and that it was not apparent that intensive management was required. According to her understanding, she has submitted enough information in her second application and the respondent could have approached her doctor if they required additional information.
5.2. Under cross-examination applicant testified that she is fully aware that temporary incapacity leave is not an automatic right but an application that must be approved by SOMA. The temporary incapacity leave application is also informed by the employee’s usage of his/her annual sick leave. In its second rejection, SOMA has provided reasons why her second application was declined. During her previous sick leave cycles, she had submitted all required documents, including medical certificates. It is incorrect that she was abusing her sick leave during the previous cycles. If the employer had some problems with the medical certificates that she has submitted, they could have requested additional information from the doctor.

THE RESPONDENT’S CASE
6.1. The respondent’s only witness was Thembi Zondo. She testified that the temporary incapacity leave is not a benefit or right but is subject to approval by health risk manager (SOMA) after careful assessing of the application. Once an application is received by the department, is forwarded to SOMA for assessment and approval. It is the applicant’s responsibility to attach all necessary supporting documents to support the application. Supporting documents include medical certificates and medical reports. Submitting a medical certificate alone is not sufficient. The applicant has to submit/attach additional medical reports including disclosing his/her nature of sickness. SOMA has given reasons why the applicant’s second application was declined.
6.2. Under cross-examination the respondent’s witness testified that SOMA is an independent health risk manager that evaluates/assess temporary incapacity leave applications on behalf of the respondent. SOMA is made up of group of doctors. The applicant was given two opportunities to submit required or sufficient information. According to SOMA’s second recommendation, they questioned the applicant’s usage of sick leave since 2022. In the applicant’s case, SOMA relied on the college to submit all required information on behalf of the applicant. If indeed the applicant has submitted all required information to the college HR department, but such was not forwarded to SOMA, the applicant has the right to re-submit the application for the third time. For the second assessment, additional medical reports/information was received from the applicant, but it was not sufficient according to SOMA. According to SOMA recommendation, the second assessment was declined because the consulting doctor did not provide additional information regarding the extent of the functional limitation associated with the applicant’s condition and that it was not apparent that intensive management was required. SOMA report and recommendations were delivered to the applicant via the college but cannot confirm if she has received it. During the applicant’s previous sick leave cycles, she failed to submit medical certificates. The medical information form completed and signed by the applicant’s doctor on 04 February 2026, was not attached to the second application since it was recently obtained.

ANALYSIS OF EVIDENCE AND ARGUMENTS
8.1. In this matter, the onus was on the applicant to prove on balance of probabilities that the decision of the respondent not to approve her temporary incapacity leave was substantively unfair.
8.2. The Policy and Procedure on Incapacity and Leave and Ill-Health Retirement (PILIR) provides that the application for temporary incapacity leave must be submitted on prescribed application forms. Medical Information Form in Support of Mandatory Medical Certificate.
8.3. The PILIR also provide that the application form must, regardless of the period of absence, be accompanied by a medical certificate with medical information form in support of the mandatory medical certificate in the case of a short period of temporary incapacity leave, issued and signed by a medical practitioner and if the employee has consented, the nature and extent of the incapacity.
8.4. In this matter, it is common cause that SOMA has acknowledged receiving new additional medical reports/information with the second application but indicated that it was not sufficient. SOMA indicated that the reason for declining the second application despite receiving new additional medical reports/information was because the attending doctor failed to provide additional information regarding the extent of the functional limitation associated with the applicant’s condition and that it was not apparent that intense management was required.
8.5. As per the requirement of PILIR, the information that was missing as per SOMA’s second recommendation must be provided by the medical doctor on the prescribed application form: Medical Information Form in Support of Mandatory Medical Certificate. The prescribed application forms submitted by the applicant during the arbitration proceedings as proof that she has submitted all the required information during her second application were completed and signed by the doctor on 22 January 2026 and 04 February 2026. I therefore conclude that the prescribed application forms were probably not before SOMA during the first and second assessments since they were acquired long after the second assessment has been declined.
8.6. Further, I find it unreasonable for the applicant to expect SOMA to approach her doctor to seek additional information to which she must first consent before the doctor can make it available to the third person. During her evidence in chief, the applicant conceded that she has received both SOMA recommendations. The PILIR place an obligation to the applicant to provide all additional medical reports/information using the prescribed application form when applying for temporary incapacity sick leave. For the applicant to rely on recently acquired medical reports to support her claim, is classic example of clutching at straws.
8.7. In the circumstances, I conclude that the applicant has failed to prove on balance of probabilities that the decision not to approve her temporary incapacity leave was substantively unfair.

AWARD
9.1. The applicant’s application is dismissed.