Panelist: Sally-Jean Pabst
Case No.: ELRC318-24/25EC
Date of Award: 14 October 2024
In the ARBITRATION between:
NAPTOSA obo COETZEE, Ms Sharne Zo-Anne
(Union / Applicant)
and
Eastern Cape Department of Education
(Respondent)
DETAILS OF HEARING AND REPRESENTATION
1. This matter was arbitrated at the Gqeberha offices of NAPTOSA on 4 October 2024. The subject matter of the dispute – enforcement of a collective agreement in terms of section 33(A) of the Labour Relations Act 66 of 1995 (the LRA), read with clause 69 of the ELRC Dispute Resolution Procedures.
2. The Applicant Ms Sharne Zo-Anne Coetzee was represented by Mr Anton Adams, an official from NAPTOSA, a registered trade union. The Respondent, the Eastern Cape Department of Education (ECDOE), was represented by Ms Annalie Slabbert, the Respondent’s Labour Relations Officer.
3. The arbitration hearing was digitally recorded, and at the conclusion of the arbitration the parties submitted verbal closing arguments.
4. The parties submitted into evidence a combined / shared bundle of documents they relied upon, to which all was agreed between the parties as being what it purports to be.
ISSUE TO BE DECIDED
5. I have to determine whether the Respondent breached ELRC Collective Agreement 7 of 2011 (CA) and the Personnel Administrative Measures (PAM) at paragraph H.5.3 by:
5.1. failing to adhere to the timelines in its short term temporary incapacity leave policy, as well as by
5.2. not approving the Applicant’s application for short term temporary incapacity leave.
6. In relief, if the Respondent was in breach of aforementioned legislature, the Applicant wishes for approval of her application for short term temporary incapacity leave to be awarded.
BACKGROUND
7. The Applicant has been serving in the employ of the ECDOE since March 2015. She is currently a Post Level 1 Educator in service of the Respondent at its West End Primary School in Gqeberha.
8. The Applicant applied for short term temporary incapacity leave in May 2023.
9. The Respondent failed to respond to said application within 30 working days as prescribed in ELRC Main Collective Agreement 2001.
10. The application was not approved by the Respondent, this in terms of a letter from the Respondent setting out requirements for approval, dated June 2024.
SURVEY OF EVIDENCE AND ARGUMENT
APPLICANT’S EVIDENCE
11. Ms Coetzee filed a formal application for short term temporary incapacity leave with the Respondent on 5 May 2023 – this in accordance with ELRC 7 of 2011 and the Personnel Administrative Measures (PAM) at paragraph H.5.3.
12. Her medical practitioners certified the Applicant unfit to perform her duties (booked off), for a period of 10 days – from 2 May 2023 to 12 May 2023 – this terms of mental health concerns relating to bereavement. The Applicant completed the correct form – a Level A Application Form applicable to short term temporary incapacity leave application for less than 30 days – and duly filed this with the School Principal on 5 May 2023 – this being iin accordance with the CA requirements filed within 5 days of being booked off.
13. Mr Adams emphasised that, seeing as the period of leave for which approval was sought was for 10 days, her application was tailored specifically in accordance with the requirements of the Respondent’s short term (less than 30-day period) temporary incapacity leave policy. This, as opposed to the requirements for long term (more than 30-days) temporary incapacity leave applications.
14. On 7 June 2024 – notably in excess of 12 months later – the Applicant received a letter dated 9 May 2024 with reasons provided for non-approval of her application, to which she noticed the provided requirements stipulated in the letter in fact rather relates to the requirements as set out by the long term incapacity leave policy of the Respondent, which is the incorrect policy requirements applied to evaluating her application.
15. The Applicant contends that her application was compliant in terms of the requirements of aforementioned PAM and CA, but was not approved because it was measured against the incorrect requirements – that of long term incapacity leave. By taking more than 12 months to respond to her application the Respondent was in breach of ELRC Main Collective Agreement of 2001 stipulating that the Principal must within 2 days submit her application to the Respondent, where after the Respondent must within 5 days ‘temporarily approve’ the application, and then within 30 days either finally approve or decline the application.
16. The Applicant testified that she never received a ‘temporarily approved’ letter as depicted by the Main Agreement, and only on 7 June 2024 – 14 months after her application – she received the letter in evidence dated 9 May 2024 regarding her application. The letter was also incomplete, in that it neglects providing the Applicant with guidelines on how to appeal the decision and the correct additional documentation required for the application to succeed. The Applicant further lodged a grievance in this regard, but received no response in answer.
RESPONDENT’S EVIDENCE
17. The Respondent’s case in summary is that the Applicant applied for short term temporary incapacity leave on the correct form and in accordance with the policy of the Respondent and Collective Agreement (CA) ELRC 7 of 2011 read with the PAM at H.5.3. The documentation appended to her application was in accordance with the short term temporary incapacity leave policy, but was erroneously assessed against the requirements of long term temporary incapacity leave applications – this evident from the specifics in the letter from the Respondent in evidence dated 9 May 2024.
18. The Respondent called as witness Ms Karen Ras, who echoed the evidence of the
Applicant during her testimony under oath. Ms Ras agreed that the Applicant’s application filed in May 2023 was indeed compliant with the applicable policy and CA and PAM extracts, and that if the application had been measured against the correct requirements it would not have been met with disapproval. She further concedes that the Respondent breached the time constraint requirements as set out in the policy and the Main Collective Agreement and the PAM as cited by the Applicant party.
19. The Respondent’s case in summary was that the Applicant’s application was not approved due to incorrect measurement tool applied, and that the Respondent failed to timeously revert with feedback on the application in breach of the aforementioned policy.
ANALYSIS OF EVIDENCE AND ARGUMENT
20. I am in full agreement with both parties that the Respondent in this matter breached the CA and PAM requirements by firstly applying an incorrect measurement-tool or criteria in assessing Ms Coetzee’s application, and secondly by failing to adhere to the time constraints as specified in the policy for providing feedback on approval and providing the correct reasons and guidelines after non-approval.
21. The Collective Agreement 7 of 2011 and PAM at H.5.3 supports the Applicant’s averment that the documentation she provided in substantiation of her application meets the requirements of the policy for short term temporary incapacity leave, and that the Respondent breached the required CA timeline when it took more than 12 months to revert.
22. The Applicant further lodged a grievance in this regard, but received no response in answer – this was not contested by the Respondent party.
23. 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.”
(emphasis added)
AWARD
24. The Respondent, the Department of Education of the Eastern Cape, was in breach of Collective Agreement 7 of 2011 and PAM at H.5.3, as well as breached the ELRC Main Collective Agreement specifying timelines for reverting on applications for temporary incapacity leave.
25. The temporary incapacity leave application of the Applicant for the period 9 May 2023 to 12 May 2023 is to be recorded as approved Temporary Incapacity Leave. The Respondent must amend the Applicant’s leave record to record the above by no later than 31 October 2024.
Commissioner Sally-Jean Pabst
ELRC Arbitrator