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24 February 2026 -ELRC871-25/26KZN

IN THE ELRC ARBITRATION
BETWEEN:

MPHONYANE FRANSCICA MOLEFE “the Applicant”

And

HOD: KWAZULU NATAL DOE “the Respondent”

ARBITRATION AWARD

Case Number: ELRC871-25/26KZN

Date of arbitration: 12 December 2025

Date of Award: 24 February 2026

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

DETAILS OF HEARING AND REPRESENTATION

  1. The arbitration commenced on 12 December 2025 and was held online.
  2. The Applicant, Ms. Mphonyane Francisca Molefe, was present and represented by Mr. S B Moeketsi, an attorney from DS Gumbi Attorneys Inc., whereas the Respondent, the Department of Education – KwaZulu Natal was represented by Mr. W B Ntshangase, its Deputy Director: HRM.
  3. After the Respondent applied for postponement of the proceedings, it was decided that the Applicant party would file a founding affidavit on or by 08 January 2026 after which the Respondent party would file an answering affidavit on 16 January 2026. The Applicant party would then file a replying affidavit on 21 January 2025.
  4. The proceedings were digitally recorded, and I also made handwritten notes.
  5. Ms. Mandisa Mthembu, a part time Interpreter of the ELRC was available for interpreting services.

ISSUE TO BE DECIDED

  1. I am required to determine whether the Respondent committed an unfair labour practice or not as envisaged in section 186(2)(b) of the Labour Relations Act 66 of 1995 as amended (the LRA) when it refused the Applicant’s temporary incapacity leave, demanded that the Applicant pay an amount of R 51 819.82 in installments of R 5 181.98 over a period of 10 months and deducted an installment amount of R 5 181.98 from November of 2025. The Applicant prayed for the relief of reimbursement of all monies deducted from her salary from November of 2025 to date and further and alternative relief.

BACKGROUND

  1. The Applicant commenced employment with the Respondent on 01 June 2006 and is currently employed on a permanent basis as a Departmental Head Post Level 2, with persal number 20705441, at Ikaheng Primary School, Nquthu, UMzinyathi District, KwaZulu Natal. The Applicant was injured in a car accident on 04 February 2022 and suffered serious injuries. In 2023, due to the injuries, the Applicant applied for temporary incapacity leave.
  2. On 06 August 2025, the Respondent provided written notification that the leave application for the period of 10 October to 20 November 2023 was not approved. The Applicant was requested to provide consent for the recovery of overpaid salary by 26 August 2025 and advised of the right to lodge a grievance. Consequently, the Applicant formally lodged a grievance on 19 August 2025.
  3. Subsequently, on 17 October 2025, the Respondent informed the Applicant that the leave application for the period of 18 July to 29 August 2023 was also declined. The Respondent further advised that a total amount of R 51 819.82 would be recovered via salary deductions over a ten-month period, commencing in November of 2025.
  4. On 15 November 2025, the first deduction was effected. Aggrieved by the deduction, the Applicant referred an unfair labour practice dispute relating to benefits to the ELRC on 29 October 2025.
  5. The ELRC scheduled the matter to be conciliated but it remained unresolved. The ELRC then scheduled the matter to be arbitrated before me on 12 December 2025 but the Respondent applied for a postponement of the matter. As it was agreed that we could not proceed on the scheduled date, we agreed that the matter would be heard on papers as indicated on paragraph [3] of this award.

SUMMARY OF EVIDENCE AND ARGUMENTS

  1. As per section 138 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.
  2. The Applicant provided a Bundle referred to as A with 44 pages.
  3. The Respondent provided a Bundle referred to as B with 24 pages.

The Applicant’s Case

  1. The Applicant’s Legal Representative, Mr. D S Gumbi, submitted as follows in the Applicant’s heads of arguments: Following the motor vehicle collision on 4 February 2022 where the Applicant sustained four major fractures, she went on temporary incapacity leave from 18 July 2023 to 29 October 2023. This leave was taken as per the recommendation of her treating orthopedic surgeon, Dr. Xolisa Mgele.
  2. Mr. B Mokonyane, the school principal, provisionally approved the Applicant’s temporary incapacity leave. The Respondent issued a letter on 08 August 2025 declining the Applicant’s temporary incapacity leave for the period of 10 October 2025 to 20 November 2023. The letter further advised the Applicant to lodge a grievance if she intended to contest this decision.
  3. On 19 August 2025, the Applicant lodged a grievance supported by medical records and a medical certificate. On 17 October 2025, the Respondent issued a letter declining the application for temporary incapacity leave for the period of 18 July 2023 to 29 August 2023. This correspondence further instructed the Applicant to repay a sum of R 51 819.82, to be collected in monthly installments of R 5 181.98 over a period of 10 months. On 14 November 2025, the Respondent deducted R 5 151.98 from the Applicant’s monthly salary. The Applicant contended that this deduction constituted an unfair labour practice.
  4. In terms of procedural fairness;

a. Section 34(1) of the Basic Conditions of Employment Act No. 75 of 1997, an employer may not make any deduction from an employee’s remuneration unless the employee agrees to the deduction in writing regarding a specified debt, or the deduction is required or permitted by law, a collective agreement, a court order, or an arbitration award.

b. The Respondent’s letter dated 06 October 2025 advised the Applicant to lodge a grievance. However, the subsequent letter dated 17 October 2025, which pertained to a different period of temporary incapacity leave, did not provide the Applicant with this opportunity. In accordance with clause 7.3.5.1 (f) (ii) (C) of the Policy and Procedure on Incapacity Leave and Ill-health Retirement (“PILIR”), an employee who is dissatisfied with the employer’s decision may lodge a grievance.

c. Upon the filing of a grievance by the Applicant, the Respondent is required to address the matter and communicate the outcome to the Applicant. Should the Applicant decline to commit to a repayment plan for the outstanding balance, the Respondent may proceed with the recovery of funds paid during temporary incapacity leave, in terms of section 34(1) of the LRA.

d. Following the submission of the Applicant’s medical records and certificates, the immediate supervisor provisionally approved the request for temporary incapacity leave. Pursuant to clause 7.3.5.1 (e) of the PILIR, the Respondent was required to notify the Applicant of the final decision regarding the approval of this leave within 30 working days.

e. The Respondent only advised the Applicant on 17 October 2025, that her temporary incapacity leave was declined, several years after the leave was taken. The Labour Court gave expression in PSA and another v PSCBC and Others (D751/09) [2013] ZALCD 3 (Gouvea) read with Department of Roads and Transport v PSCBC and Others Case PR40/40 (15 February 2017). The legal principles in these cases amplified the effect of giving the outcome for an application for temporary incapacity leave after the 30-day period had lapsed by stating that the consequences of a retrospective effect are that it amounts to an unreasonable and arbitrary exercise of a discretion with unfair consequences to an employee.

f. In the subsequent case, judge Lallie J relied on the decision of Cele J in Gouvea and held that the 30 days’ period in Resolution 7 of 2000, is consistent with the objectives of the LRA, was peremptory as evident from the fact that the Respondent was enjoined by Resolution 7 of 2000 to take into account the provision of item 10(1) of Schedule 8 of the LRA.

  1. In terms of the substantive fairness,

a. The Applicant’s temporary incapacity leave was recommended by her treating orthopaedic surgeon, Dr. Xolisa Mgele, a specialist with over 15 years of experience in private practice. The Applicant consistently submitted all required medical reports and certificates throughout her absence. The grounds upon which the Respondent declined this leave remains unclear. Furthermore, there is no evidence that the health risk manager conducted the primary or secondary assessments required by clauses 7.3.5.1 and 7.3.5.2 of PILIR.

b. In terms of PILIR, the head of department may grant a maximum of 30 consecutive days with full pay during which investigation must be conducted into the nature and extent of the incapacity. The investigation shall be conducted in accordance with the item 10(1) of Schedule 8 of the LRA. On 18 November 2025, the ELRC issued a subpoena requiring the Respondent to produce the Thandile Health Management Report. This report was utilized as collateral to decline the Applicant’s incapacity leave. To date, the Respondent has failed to comply with this requirement.

c. An employee may be granted additional paid sick leave at the discretion of the employer where the employee has exhausted their 36 days’ sick leave in a 3-year cycle, and according to the relevant medical practitioner required to be off work due to a temporary incapacity, provided that their immediate supervisor is informed of their illness, and a registered medical practitioner certifies in advance that the employee is required to be absent from work due to a temporary incapacity. The Applicant has complied with all the aforementioned requirements.

  1. In the replying affidavit, the Applicant’s legal representative deposed as follows: The contents of paragraph 1.1. were denied. The Applicant referred this dispute in terms of section 186 of the Labour Relations Act. Had the Respondent held a different view regarding the nature of the dispute, a point in Limine should have been raised at the inception of this matter.
  2. The contents of paragraph 1.2 are denied. On 6 August 2025, the Respondent sent a letter to the Applicant noting that although she was referred for rehabilitation, no report was submitted detailing the extent of her impairment or how it affected her work performance. Additionally, the Applicant was informed that if she was dissatisfied with the decision, she could lodge a grievance in accordance with the Public Service Commission rules.
  3. On 19 August 2025, the Applicant lodged a grievance, and the medical records were attached for the Respondent’s review. To date, the Respondent has failed to communicate a final decision regarding the outcome of this grievance. Instead, a letter dated 17 October 2025 was received, citing different dates and reasons for declining the temporary incapacity leave. This letter states that HRM utilized existing information to recommend the leave but concluded there was no evidence of poor healing or complications, noting that the period applied for commenced 17 months after the injury.
  4. The two letters in question were distinct from one another, as the reasons provided for declining the Applicant’s temporary incapacity leave were inconsistent. The Respondent cannot, therefore, rectify this crucial discrepancy and the resulting procedural flaw.
  5. In terms of paragraph 3.2, the principal signed the application for temporary incapacity leave, thereby granting the Applicant further leave pending the completion of investigations within 30 days, as specified by PILIR. Regarding the contents of paragraph 4.1, while temporary incapacity leave may be regulated by PSCBC Resolution 7 of 2000 and PILIR, these frameworks do not authorize the Respondent to make deductions from an employee’s salary without following proper legal procedures.
  6. The contents of paragraphs 4.2 to 4.5 were denied. The Respondent’s heads of argument were vague, evasive, and failed to address the Applicant’s specific claims. In addition to this, the references to the Public Finance Management Act (PFMA), and its relevance to the Applicant’s case were not been established.
  7. The contents of paragraph 4.6 were denied. The purpose of Section 34(1)(a) and (b) of the Basic Conditions of Employment Act, read with Section 33 of the Constitution of South Africa, was to give effect to the constitutional right to fair labour practices. The Applicant was entitled to just administrative action. The Respondent may not deduct an employee’s salary without following proper procedure. Consequently, the deductions made by the Respondent were both discriminatory and unlawful.
  8. The contents of paragraphs 4.7 to 4.9 were denied. The case of Lallie J confirmed that it was mandatory for the Respondent to conclude investigations within 30 days after the temporary incapacity leave was submitted. Furthermore, in the Witcher J case, the Applicant failed to submit the medical records necessary to justify the temporary incapacity leave taken.
  9. The contents of paragraph 4.10 are denied. It was unclear how the issue of legal representation would have affected the discovery of the Thandile Health Risk Management report used to decline the application for temporary incapacity leave. The contents of paragraph 4.11 were also denied. The Respondent was using a blanket approach and had failed to substantiate their submissions with documentary evidence. Furthermore, arbitration awards cannot supersede superior court judgments.
  10. The Applicant raised a point in Limine and submitted that the Respondent had failed to honour the subpoena granted by this Council. In the absence of the medical assessment report used to decline the Applicant’s temporary incapacity leave, Dr. Xolisa Mgele’s report remained unchallenged. The contents of paragraphs 6.1 to 6.7 were denied. The substantive fairness of this case rested upon the medical reports issued by the Applicant’s treating specialist. The Applicant raised a point in Limine to object to the Respondent’s submissions on the merits of the case as the Thandile Health Risk Management Report remained outstanding.
  11. The contents of paragraph 6.9 were denied; the Respondent committed an unfair labour practice in terms of section 186 (2)(a) of the LRA.

The Respondent’s Case

  1. The Respondent Representative, Mr. W B Ntshangase deposed in the Respondent’s heads argument as follows: Wwhen an employee applies for temporary incapacity leave, the employer may conditionally grant up to 30 working days of leave with full pay while the application is under investigation. If the application is subsequently declined, the leave taken during the conditional approval period may be converted to annual or unpaid leave. Consequently, employees may face salary deductions for the days they were absent without approved leave.
  2. In terms of the procedural fairness.

a. The Applicant claims that the Department of Education KZN acted unfairly by implementing deductions starting in November 2025. Consequently, the Applicant opted to refer the dispute in terms of Section 186(2)(a) of the LRA. However, the Applicant has failed to consider that temporary incapacity leave is specifically regulated by PSCBC Resolution 7 of 2000 and the PILIR policy of August 2021.

b. Section 7.1.8 of the PILIR states that an employee must apply for temporary incapacity leave, either personally or through a relative, colleague, or friend, within five working days after the first day of absence. Furthermore, Section 7.3.5 (f) (ii) provides that if an employer refuses temporary incapacity leave that was granted conditionally, the employer must notify the employee in writing of the refusal and the reasons for it. The notice must also inform the employee of their right to lodge a grievance if they are dissatisfied with the decision.

c. The Department of Education KZN has acted fairly and in accordance with the procedures outlined in PSCB Resolution 7/2000 and the PILIR policy of August 2021. The Applicant was duly informed of the grievance process, the total amount owed, and the specific date that monthly deductions would commence. As an educator and public servant, the Applicant is subject to Section 38 of the Public Service Act. This provision applies as she received remuneration to which she was not entitled, having been paid during a period of leave without pay from 18/07/2023 to 29/08/2023. Allowing the Applicant to retain these funds would constitute an irregularity and wasteful expenditure, contrary to the provisions of the PFMA (1999), as no services were rendered during the period in question.

d. Under the Basic Conditions of Employment Act 75 of 1997 (BCEA), there is no specific entitlement for employees to take unpaid leave. The BCEA only refers to unpaid leave in instances where an employee has exhausted their paid sick leave entitlements. If an employee has used all of their paid leave, they may apply for unpaid leave; however, the decision to grant such a request remains at the employer’s discretion.

e. Regarding the Applicant’s argument in paragraph 5.10 of their heads of argument, the claim that the Respondent issued an investigation outcome for temporary incapacity leave after the 30-working-day period had expired is disputable. In the case of POPCRU obo Lindani Earl Emmanuel Mbingwe v Department of Correctional Services (D642/15) [2016], Witcher J noted: “However, if the period the employer takes to decide the application exceeds 30 days set out in PILIR, I do not see how the conditionality of payments to an employee, subject to a medical assessment, hardens into an entitlement after the 30 days investigation period lapses… it seems to me that, if the underlying medical condition which prompted an employee to seek additional sick leave is assessed not to have warranted such leave, this fact determines what happens to any payments they received while applying and not the employer’s delay in attending to the application.”

f. Witcher J held that an employer’s failure to respond to an application for temporary incapacity leave within 30 days does not translate into an automatic entitlement to such leave. Furthermore, Commissioner Minette van der Merwe, in the matter of PSA obo W H Theunissen and Department of Correctional Services (23 August 2017), supported this view. The Commissioner stated that it is insufficient to argue that temporary incapacity leave should be approved solely because a Respondent failed to comply with the 30-day time limit.

g. Regarding the allegation that the Respondent failed to provide the subpoenaed Thandile Health Risk Manager Report, the Respondent maintains that it was not prudent to disclose the report before the issue of legal representation was resolved. The Respondent followed procedure as outlined in the PILIR August 2021 and PSCBC Resolution 7 of 2000. The aspect articulated in two of the above cases form precedent to matters that emanate after their pronunciation. The Gouvea case is outdated by recent judgments and arbitration awards.

  1. In terms of the substantive fairness,

a. While the Applicant applied for temporary incapacity leave as per Dr. Mgele’s recommendations, such medical recommendations are not mandatory. The Respondent disputes the Applicant’s claim that Ms. Molefe was denied the opportunity to lodge a grievance. The subject line of the letter dated 17 October 2025, “Leave without pay for a declined incapacity leave grievance for the period 2023/07/18 to 2023/08/29,” confirms her application was declined and she was advised to lodge a grievance to submit additional supporting information.

b. While the Respondent conducts investigations and determines outcomes, these decisions are informed by the report provided by the Health Risk Manager. The Respondent did not implement the deductions unilaterally; rather, the Applicant was notified via a letter dated 17 October 2025. This correspondence detailed a debt amount of R 51,819.98 and confirmed that monthly deductions would commence in November 2025. Furthermore, the PILIR policy of August 2021 and PSCBC Resolution 7 of 2000 stipulate that the employer has the authority to exercise discretion in granting or declining Temporary Incapacity Leave (TIL) following an investigation, which should ideally be completed within 30 working days.
c. The judgement made by Witcher J in POPRU obo Lindani Eari Emmanuel Mbongwe v Department of Correctional Services D642/15: 23 November 2016 and PSA obo WH Theunissen and Department of Correctional Services Arbitration Award: 03 August 2017 rules that the failure of the employer to respond to TIL application within 30 days does not translate into an entitlement to such leave.

d. The Respondent did not commit an unfair labour practice by implementing deductions for leave without pay against the Applicant following the declined temporary incapacity leave application. The failure to process the application within 30 days does not translate into an entitlement to such leave. Furthermore, the implementation of these deductions long after the expiry of the 30 working days is supported by Judge Witcher’s judgement and Commissioner Minette van der Merwe’s arbitration award. As the process followed by the Respondent was both procedurally and substantively fair, this dispute should be dismissed.

ANALYSIS OF EVIDENCE AND ARGUMENT

  1. In terms of clause 9 of ELRC Resolution 7 of 2001, which has been incorporated and duplicated in clause B12 of PAM, the Head of Department is granted discretion to grant paid temporary incapacity leave to an educator who has exhausted all his sick leave. Such discretion is of such a nature that courts and tribunals may not interfere with it, unless it has been exercised in an irrational, capricious or arbitrary manner or male fide. No court or tribunal will be allowed to interfere until such time as the Head of Department has actually exercised his discretion or refused to exercise his discretion. In this case, the HOD has exercised this discretion and the Applicant is aggrieved thereof.
  2. Section 23 (1) of the 1996 Constitution of the Republic of South Africa read together with sections 185 and 186(2) of the Labour Relations Act, 66 of 1995 provides that everyone has the right to fair labour practices.
  3. The true dispute before me is whether the Respondent committed unfair labour practice or not by refusing the Applicant’s application for temporary incapacity leave and recovering the amount equivalent to 30 days being R51 819-82. The relief sought is a declaration that the envisaged deductions constitute unfair labour practice and for the Respondent not to proceed with them. The Applicant also alleged that the Respondent failed to give the Applicant a chance to lodge a grievance and consequently followed an incorrect procedure.
  4. It goes without saying that for me to make such a determination, I will have to determine if the Respondent applied the Policy and Procedure on Incapacity & Ill-Health Retirement and/ clause B12 of PAM which is an issue within the main dispute.
  5. Jurisdiction is determined on the basis of the pleadings and not the substance of the merits. The approach of the Constitutional Court in Gcaba v Minister for Safety & Security (2010) 31 ILJ 296 (CC); (2010) 31 ILJ 1813 (LAC) adopted by the Constitutional Court pointed out that what ultimately determined the jurisdictional divide was the manner in which the dispute was pleaded (i.e. the cause of action relied upon) and the nature of the relief sought.
  6. In the case before me, the Applicant is challenging the decision of the Respondent to deduct monies after the refusal of her temporary incapacity leave application and the ELRC is the right tribunal to make a determination.
  7. Chapter G.4.3.4. of the Personnel Administrative Measures states that should the grievant(s) not be satisfied with the outcome, he or she may register a formal dispute with the General Secretary (GS) of the ELRC in terms of the provisions of the ELRC’s Constitution. The Applicant submitted that lodged a grievance to the Respondent on 19 August 2025 but there was no response. Instead, the Respondent went on to implement deductions as from 15 November 2025.
  8. The Applicant applied for Incapacity Leave for the period 18.07.2023 to 29.08.2023. Her application was conditionally granted and reviewed by a Health Risk Manager (Alexandra Forbes), who did not recommend the approval due to the lack of objective evidence that the intervention on the Applicant failed to succeed in restoring the Applicant’s health. Moreover, the temporary incapacity leave was sought 17 months after the accident and the HRM thought it was too excessive.
  9. The Applicant was formally informed in writing of the outcome of her leave application, the reason for non-approval and the procedure to follow if she disagreed with the decision. She was also advised that she could lodge a grievance with both the Respondent’s Labour Section and Leave Section. This was done through a letter to the Applicant from the HOD dated 17 October 2025 provided in page 6 of the Respondent’s affidavit. The Applicant did not dispute receiving this letter.
  10. The Applicant filed a grievance to the Respondent with new medical information as stipulated in clause 13.4 of the PILIR policy. Thandile HRM assessed her leave application after this was done by Alexandra Forbes. The recommendation was that the leave is not approved and this was issued on a report by Thandile HRM dated 29 September 2025 by Dr. L. S. Mokwena. This meant that the decision for the Respondent to refuse the Applicant’s temporary incapacity leave stood. The next step would be to recover the provisionally granted leave after converting it to unpaid leave.
  11. The Applicant submitted that it was unlawful for the Respondent to deduct money from her salary without her written consent or a court order. The question is how should the Respondent recover refused temporary incapacity leave that had been provisionally granted whilst the application was being assessed. If the decision not to grant the leave is finalized and the Applicant unsuccessfully challenged the decision or failed to challenge the decision as in this case, it would pose a great dilemma for the Respondent if it needed the Applicant’s written consent each time. If the Employees refused, it would cost a significantly high amount of money to secure a court order each time as envisaged in Section 34 (1) (b) of the BCEA.
  12. The question is whether Section 34 (5) (a) of the BCEA is applicable in this matter as it refers to an exception to requiring an employee to repay any remuneration if the overpayment previously made by the employer resulted from an error in calculating the employee’s remuneration. In this case, there was no error but the leave was provisionally granted pending approval. However, it was not approved. This does not make the overpayment due to an error.
  13. 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.
  14. 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 pays common law principle applies.
  15. There is jurisprudence to be considered relating to matters such as this one like it was done, for example in Sibeko v CCMA (2001) JOL 8001 (LC) Para 6 where the Court dealt with a situation involving overpayment Educator and whether a deduction could be made without his consent.
  16. 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.
  17. 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
  18. “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 not exactly identical to the case cited as there was no error, but the refusal of the leave necessitated a legal recovery of the amount that was provisionally paid.
  19. 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.
  20. The Applicant had onus to prove that there was unfair labour practice committed by the Respondent. There was no evidence that the Policy and Procedure on Incapacity leave and Ill- Health Retirement was breached as submitted. The mistake of the wrong HRM name used in the outcome letter was satisfactorily explained. The Applicant did not demonstrate how the response provided greater than the statutory 30-day period prejudiced her.
  21. The Respondent provided documentary evidence in support of its version and succeeded in showing that there was no unfair labour practice against the Applicant. The Applicant lodged a grievance and provided medical reports by Dr. X Mgele (Orthopedic Surgeon) dated 08 February 2022 and 05 September 2022 and by Mrs. SSB Tsotetsi (Physiotherapist) dated 11 August 2025. This gave the Applicant another chance to be heard and for a recommendation to be made to the Respondent to make a decision with regards to the Applicant’s temporary incapacity leave application. Thus, I am persuaded that there was no unfair labour practice committed by the Respondent.

Award

  1. There was no unfair labour practice committed by the Respondent, the HOD: KwaZulu-Natal DOE against the Applicant, Mphonyane Francisca Molefe.
  2. Accordingly, the Applicant’s case is dismissed

L Mkhize
Arbitrator 24 February 2026
ELRC871-25/26 KZN