IN THE ELRC ARBITRATION
BETWEEN:

Raesetja Leah Sebotsane Applicant
and
The Department of Education: Gauteng Province Respondent

ARBITRATION AWARD

Case Number: ELRC65-24/25GP

Arbitration date: 02 October 2024

Date of Award: 16 January 2025

Pitsi Maitsha
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
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. An arbitration hearing was held on Zoom on 23 April 2021 under the auspices of the ELRC in terms of Section 191(5)(a)(iv) of the Labour Relations Act, 66 of 1995 as amended (referred to as “The Act”). This award is issued in terms of Section 138(7) of “The LRA.”
2. The applicant, Raesetja Leah Sebotsane, was in attendance, represented by Mr. Phillip Makhubela, an attorney from Mashabela Attorneys. The Department of Education: Gauteng Province respondent was represented by Mr. Parapara Mokgothadi, the Labour Relations Officer.
3. The parties provided evidence under oath. The proceedings were conducted at the Department of Education: Gauteng Province offices in Tshwane North District, Wonderboom Junction, and were digitally recorded via Zoom.

ISSUE TO BE DECIDED

4. I am required to determine whether the respondent correctly interpreted and applied PILIR. Suppose I find that the respondent treated the period of temporary incapacity leave without pay, in that case, I will order the respondent to adjust the applicant’s salary notch, remunerate all due money, and ensure tax deductions are applied to these payments. An appropriate award will be made accordingly.

BACKGROUND DETAILS

5. A pre-arbitration meeting was held on 10 July 2024 at Mashabela Attorneys, and the following points were agreed upon in the Pre-Arbitration Minutes:
6. Agreed Facts:
   6.1. No prejudice existed as of the pre-arbitration meeting date, 10 July 2024.
   6.2. No settlement was reached.
   6.3. The applicant bears the duty to begin and the onus of proof.
   6.4. Evidence may be presented via documentary and oral means.
   6.5. The applicant will call one witness, and the respondent will call three witnesses.

COMMON CAUSE ISSUES

7. Facts:
   7.1. The applicant’s salary was docked for two months (October and November 2018) at R7,004.60.
   7.2. The applicant was absent from work from 15 January 2018 until 18 March 2018, having applied for temporary incapacity.
   7.3. A medical certificate dated 15 January 2018 indicated the applicant was unfit to work until 28 March 2018.
   7.4. The applicant returned to work on 11 April 2018 and was informed by the Principal, Mr. Abraham Sefike, about communication from the respondent.
   7.5. On 15 May 2018, the applicant requested an extension for filing an appeal to consult with attorneys and an occupational therapist.
8. On 16 May 2018, the applicant received a letter stating that her temporary incapacity leave from 15 January to 18 March 2018 was not approved due to insufficient rehabilitation information. The letter cited a lack of compliance with previous recommendations and issues with the applicant’s sick leave utilization.
9. The applicant consulted an occupational therapist on 22 May 2018 and submitted the report to the respondent the next day. She filed an appeal on 29 May 2018, citing challenges in obtaining the required documentation.
10. On 24 July 2018, the respondent rejected the applicant’s appeal, reiterating that her temporary incapacity leave application was denied due to insufficient medical information and inconsistent sick leave usage. The applicant was advised to comply with specific medical and rehabilitation recommendations.
11. The applicant, an educator at Rethabile Primary School since 23 June, disputed the salary deductions and referred the matter to the ELRC, seeking reimbursement for the docked salary.

THE APPLICANT’S CASE

12. The applicant testified that she returned to school on 11 April 2018 and informed the principal, who provided two letters from the Department. She consulted an occupational therapist on 22 May 2018 and submitted the medical report on 23 May 2018. She claimed that her salary was unjustly docked, as she had submitted all required documents.
13. She stated that after her salary was docked, she contacted the union SADTU and spoke with Mr. Thompson Mampane, and later escalated her case to the then-MEC of Education, Panyaza Lesufi. Although an email from the MEC’s legal representative, Mr. Mpho Maloka, indicated the salary should be reversed, the respondent did not act on this advice.

THE RESPONDENT’S CASE

14. Testimony of Qaqambile Mdlalose: Assistant Director, Human Resources
15. Mr. Mdlalose, a 20-year HR department employee dealing with leave and PILIR, testified that leave is only denied if it does not meet minimum requirements.

ANALYSIS

16. This case concerns the interpretation and application of the ELRC Collective Agreement NO. 7 of 2001 and the provisions of Chapter H section (5) of PAM. The main determination in this instance is whether the respondent correctly declined the applicant’s application for temporary incapacity leave, interpreted the relevant provision, or applied it. Exercise is The parties agreed to submit closing arguments in writing, which have been reviewed and considered. The applicant submitted documentary evidence (referred to as Bundle A) and called one witness, while the respondent submitted Bundle R and called one witness.
17. Temporary incapacity leave is governed by clause 7.1 of the Policy and Procedure on Incapacity Leave Ill-health Retirement, and for ease of reference, I will “PILIR.” Clause 7.1 under “THE MANAGEMENT AND TEMPORARY AND PERMANENT INCAPACITY LEAVE” 7.1 TEMPORARY INCAPACITY LEAVE defines short period of temporary incapacity leave which is one to twenty-nine working days requested per occasion, whilst the long period of temporary incapacity in terms of clause 7.3 is thirty working days or more requested per occasion.
18. Clause 4.3 of the Policy of on Leave of the Department of Basic Education under the heading “TEMPORARY INCAPACITY LEAVE” provides that the Director General may grant the educator 30 consecutive days of the temporary incapacity leave, and an investigation ought to be done during that period into the nature and extent of the employee’s or educator’s illness. Also, the Director-General may attach additional conditions to the granting of such additional days. Such conditions may include further check-ups by a medical practitioner or medical reports.
19. Regarding the above, I am of the view that for this arbitration award, the applicant’s application falls within the long period of temporary incapacity leave.
20. It is important to state from the onset that in any application for incapacity leave, the date on which the respondent receives such an application is very significant. In determining whether the respondent had exercised its discretion fairly when declining the applicant’s application for temporary incapacity leave, the periods determined in “PILIR” are of great importance to assess the conduct of the respondent in that process.
21. It is common cause that on 15 January 2018, the applicant submitted her temporary incapacity leave application to her Manager, the Principal, Mr. Sefike. In terms of section 5(3) (5) of “PAM,” the applicant is required to notify her Manager of her absence immediately despite the period of absence from work. I am of the view that the applicant has, in this regard, complied with that provision. The respondent did not dispute this version.
22. An obligation is placed on the HOD to grant the applicant a maximum of 30 consecutive working days within five days of the date of receiving her application. As it is evident in this regard that the applicant had submitted her temporary application on 15 January 2018, it then follows that the respondent had to grant her conditionally a maximum of 30 working days for temporary incapacity leave by no later than 25 January 2018. It is worth stating that that period of 30 days of temporary incapacity leave should be granted with full pay. The conditional granting of incapacity leave ought to be in writing, but in the applicant’s this did not happen.
23. I wish to record in this regard that the condition attached to the granting of temporary incapacity leave is susceptible to the outcome of the nature and extent of her investigation into her disability.
24. The temporary incapacity leave has two stages, which are: upon the receipt of the educator’s temporary incapacity leave application, the employer is obliged to immediately register the date of receipt of the application form in terms of the designated office, as well as on the central register or database and within five working days of the receipt of the employee’s temporary incapacity leave application, verify that the educator has completed and signed Part A and B of the application form and secondly, has obtained his or her medical practitioner’s input in terms of Part C of the application form.
25. In this matter, there is no evidence before me as to whether the respondent had complied with the above process. If there was such evidence, I could have been taken into confidence as to the date on which the applicant’s temporary incapacity leave application was received as it would have been registered into the register or database. There is no evidence before me stating the time when the respondent, after verifying her application form, advised her in writing that her application form was incomplete. If the first step to verify the application form had been satisfied, the temporary incapacity leave application form would have been returned to the applicant, and subsequently, she would have been made aware that her application form was incomplete. I am of the view that should the respondent have made the applicant aware immediately that her application form was incomplete, she would have taken reasonable steps to correct it and complied with the prescribed five working days period.
26. Nonetheless, it is not disputed that the Principal, Mr. Abraham Sefike, had handed the response from the respondent on 11 April 2018 upon her return to work.
27. As the applicant was made aware of the respondent’s response on 11 April 2018, she had an obligation to resubmit the application form within five working days. The last day the applicant was supposed to have resubmitted the returned form was on 18 April 2018.
28. Having verified that the applicant’s temporary incapacity leave application form was incomplete, the respondent ought to have allowed her to submit her application on time or compelling reasons as to why it could not be submitted per clause 5.3.3.1 of “PAM.” In the event the applicant failed to submit her temporary incapacity leave application form, Mr. Sefike should have notified the human resource division immediately, and as a result, the relevant authority would have approved her absence either as unpaid leave or annual leave if she consented.
29. Furthermore, there is no evidence before me stating Mr. Sefike had immediately notified the applicant that the respondent did not receive her temporary incapacity leave application form within the prescribed two working days, and it would, per clause 5.3.7.1 of “PAM,” deem a period of sick leave to be unpaid leave.
30. In terms of clause 7.2 of “PAM,” the respondent ought to have viewed a failure by Mr. Sefike to properly manage the applicant’s temporary incapacity leave application in a serious light. Nonetheless, the respondent had failed to comply with this provision.
31. Besides, the applicant had made a clear reference to the respondent’s inquiry dated 12 April 2018 in a letter dated 15 May 2018, wherein she requested an extension on the submission of her appeal. This brings me to the issue of the respondent’s calculation of the total number of working days, which is fifty-two (52). I disagree with its calculation.
32. As already stated, it is common cause that the applicant was absent from work from 15 January 2018 until 18 March 2018. Calculating from 15 January 2018 until 18 March 2018, the total number of working days is forty-five (45). I am of the view that 17 and 18 March 2018 should be excluded as they fell on weekends, Saturdays, and Sundays are not working days for the applicant. It then follows that both letters from Ms Moloi, dated 16 May 2018 and 24 July 2018, respectively, carry errors in the calculation of the period or working days.
33. It is worth noting further that the medical certificate the applicant submitted, together with her temporary incapacity leave application form to her manager, her application on 15 January 2018 stated that she was unfit to work until 28 March 2018. It must further be noted that a medical certificate is considered in terms of “PILIR” as compulsory information when determining temporary incapacity leave application. It is, therefore, my view that a medical certificate which is signed by a medical practitioner is a key consideration or significant in determining a temporary incapacity leave application, with other additional information such as the nature and extent of the illness or injury, the employer needs to obtain consent from the educator. In other words, that information is secondary to the determination of temporary incapacity leave application.
34. There was no explanation as to what took place between 12 April 2018 to 15 May 2018. I wish to record in this regard that the applicant had stated her reasons to the respondent in a letter dated 15 May 2018. I see no reason to repeat the content of such a letter. However, the applicant did not receive any response from the respondent.
35. On 16 May 2018, the applicant received what appeared to be a “response to temporary incapacity leave application,” of the applicant wherein it was stated that her application for temporary incapacity leave was not approved by the Head of Department/Delegated Authority based on the available information and the grounds for the decision were also recorded.
36. “PILIR” does not permit the respondent to continue considering the temporary incapacity leave if the application is incomplete. An obligation has been placed on the respondent to allow the applicant to provide compelling reasons as to why she could not comply with the provisions of “PILIR” or at least allow her to comply.” In other words, the applicant was supposed to have been allowed to correct the deficiency, which it failed to do.
37. Secondly, I am of the view that the respondent had ignored the medical certificate from the applicant’s medical practitioner, which she submitted on 15 January 2018. There is a clear contradiction from the reasons provided by the Head of Department/Delegated Authority in declining the applicant’s temporary incapacity leave application. The Head of the Department/Delegated Authority stated that the respondent acknowledged the applicant’s condition resulting from severe osteoarthritis and dysplasia hip.
38. According to the conditional granting of temporary incapacity leave, “PILIR” requires the respondent to investigate the approval or refusal of the applicant’s application for temporary incapacity leave, depending on the outcome of the investigation. A letter of 16 May 2018 did not make any reference to the outcome of the investigation it conducted. The error the Dead of the Department/Delegated Authority made was to deal with an incomplete application form. The said letter only recorded that the Head of Department/Delegated Authority has not approved the applicant’s temporary incapacity leave application based on available information. This is an indication that the respondent had infringed or did not comply with the provisions of PILIR, PAM, and the EEA.
39. In the unreported case of Holnburn v Member of the Executive Council Department of Education and Another (PC603/09) (2011) ZALCPE 12 dated 9 November 2011, the Labour Court said the following: “As part of the investigation, the employer has in terms of section 7 of the EEA at the Sates expense to examine the affected educator’s state of health. The affected educator has the right to nominate any other medical practitioner to be involved in his or her ill-health examination.”
40. It is worth stating in this regard that the respondent did not dispute the applicant’s version and that the respondent has never taken her to assessment. I, therefore, do not doubt in mind that the respondent did not investigate the nature and extent of the applicant’s disability to come to a reasonable decision or to exercise its discretion as to whether to approve or decline her temporary incapacity leave application.
41. The Labour Court [supra] further determines that the educator acquires the right to be heard on all aspects related to the investigation upon the employer deciding to investigate related to incapacity due to ill health. It is evident before me that his right has been infringed by the respondent. In support of the above, the provisions of clause 5 of PAM.
42. I further wish to state that the explanation provided by Ms. Moloi in the letter of 16 May 2018, in which she stated that the period applied for by the applicant in her temporary incapacity leave is unjustifiably prolonged and there is no rehabilitation information submitted with her application to justify the prolonged period should be rejected as it is misplaced. She neglected a medical certificate the applicant submitted together with her temporary incapacity leave application form. There is no communication from the respondent to the applicant within five days from the date of receipt of the application. Moreover, the respondent did not properly assess the applicant’s application for temporary incapacity leave after the principal handed her the documents on 12 April 2018, which demonstrates that he failed to manage the process.
43. The letter of 24 July 2018 captured the same information contained in the letter of 16 May 2018. The only difference I noted is that Ms. Moloi stated the following: “Your application has been processed and reassessed in terms of paragraph 11.3 of Policy and Procedure on Incapacity Leave, and Ill-health Retirement (PILIR) reads together with section 2 of the Employment of Educators Act, 76 of 1998.”
44. I wish to record in this instance that the clause referred to by Ms. Moloi is irrelevant to the applicant’s temporary incapacity leave application. The said clause applies to an employee who refuses to accept the adapted duties or to move to alternative employment suitable to his or her capacity. There is no evidence before stating that the applicant has been offered adapted duties and she had refused and accepted adapted duties or moved to alternative employment to accommodate her capacity.
45. It is not disputed that following the 16 May 2p1i letter, which declined the applicant’s temporary incapacity leave application, on 22 May 2018, the applicant consulted the occupational therapist who compiled the medical report for her, and she submitted it on 23 May 2018.
46. Then, the period of five working days became effective as now the applicant had complied with the requirements of the temporary incapacity leave application. The respondent failed to comply with the prescribed five days to deal with the application. As already stated, there is no evidence demonstrating that the respondent had investigated the nature and extent of the applicant’s disability.
47. Regarding the above, I am of the view that the respondent had failed to consider the total circumstances in determining the applicant’s temporary incapacity leave application, which resulted in an irrational and capricious decision to decline her application. Having reached the above conclusion, I am of the view that the applicant’s period of absence should, therefore, be amended to leave with full pay. There is no evidence before me that the applicant has exhausted her thirty-six (36) days of sick leave. In the absence of such evidence, the period between 15 January 2018 and 18 March 2018 should be covered by the applicant’s sick leave, and if those days are not sufficient to cover the entire period, then the temporary incapacity should apply.
48. In terms of the relief, Mr. Makhubela stated the following in the closing arguments: “(a) The respondent’s conduct be held to constitute an unfair labour practice; and (b) The respondent be ordered to refund /compensate the applicant’s docked salary with interests at a rate of 10% per annum as per (the Prescribed Rate of Interest Act of 1975), calculated from 2018 to date.
49. In this case, it is common cause that the applicant is disputing the deduction made to her salary in the amount of R7,000.00. It is tried law that the Council or CCMA does not enjoy jurisdiction in cases where the dispute involves docking of salary or deduction made on the employee’s salary. Therefore, any dispute relating to the docking of salary or deduction made in terms of section 34 of the “BCEA” should be referred to the Labour Court for adjudication. The ELRC lacks jurisdiction to determine such a dispute.
50. In O’Rellie v Commission for Conciliation, Mediation and Arbitration, Johannesburg and Others (JR2395/19) (2022) ZALCJHB 33 dated 28 February 2022, the Labour Court said: “It is true that the parties had agreed in a pre-arbitration minute that the Commissioner must determine that claim and a pre-arbitration minute is binding on the parties. However, it seems to me that the Commissioner did not have jurisdiction to determine that claim. In Amalungelo Workers Union, the Constitutional Court emphasized that jurisdiction over BCEA claims is regulated by section 77 of the BCEA. The Labour Court has exclusive jurisdiction over matters regulated by the BCEA.”
51. The Court [supra] determines that no provision in the BCEA says the CCMA has jurisdiction to determine a claim regarding an alleged breach of section 34(1) of the “BCEA.” Finally, the applicant’s claim failed because the Commissioner did not have jurisdiction to entertain her claim of breach of section 34 (1) of the “BCEA.”
52. In this matter, both in the pre-arbitration minutes, read on record in these proceedings, and in the closing argument, the applicant stated that the precise relief she is seeking is a reversal of the docked salary or educated salary that the respondent unlawfully deducted.
53. On the premises, I make the following award.

AWARD

54. The respondent is hereby ordered to amend the period from 15 January 2018 to 18 March 2018 from unpaid leave to reflect leave with full pay.
55. The respondent is ordered to pay the applicant an amount of R7004.60 (seven thousand and four rand sixty) by not later than 31 January 2025.

P. Maitsha
ELRC Panelist