Arbitrator: Minette van der Merwe Case Reference No.: ELRC 470-24/25 FS Date of award: 21 November 2024

In the Arbitration between:

Limakatso Wonder Malefane Applicant

and

Department of Education – Free State Respondent

DETAILS OF HEARING AND REPRESENTATION

1. This is the arbitration award in the matter between Limakatso Wonder Malefane (the Applicant) and the Department of Education – Free State (the Respondent), which arbitration was held on 18 November 2024 at the Respondent’s office in Bloemfontein.
2. The Applicant was represented by Ms Este van der Merwe, Legal Practitioner from DW Attorneys in Welkom. The Respondent was represented by Mr Thulo Tsunke, Senior Labour Relations Officer of the Respondent.
3. The proceedings were digitally recorded, and handwritten notes were kept. Interpretation services were provided by Mr Harold Mogayane.

ISSUE TO BE DECIDED

4. The dispute was referred as a claim of unfair labour practice related to benefits, and in terms of section 186(2)(a) of the Labour Relations Act, 66 of 1995, as amended (“the LRA”).
5. The dispute is about a period of temporary incapacity leave (”TIL”) that was declined by the Respondent, and the Respondent’s discretion to grant or decline such leave was alleged to have been unfair. The period in question is 8 September 2023 to 13 December 2023. It was common cause that the Applicant was not at work during the aforementioned period, and that deductions had already commenced from the Applicant’s salary for the unpaid leave.

BACKGROUND TO THE ISSUE

6. The dispute was referred to the ELRC and was subject to condonation. The application for condonation was granted, and the matter was subsequently scheduled for arbitration.
7. The Applicant was the HOD (Head of Department) at Moso Primary School in Hennenman, and she was still employed as an Educator. The Applicant had undergone three surgeries on her left shoulder prior to the period in question, and she was left-handed.

SURVEY OF EVIDENCE AND ARGUMENT

8. The testimonies, under oath, are fully captured on the digital recording, and a copy of the digital recording is available on request from the ELRC. Below is only a summary of the relevant evidence. If evidence is not captured herein, it does not mean that it was not considered. Documentary:
9. Bundle “A”” was submitted into evidence by the Applicant. The Respondent did not submit any documentary evidence and relied on the Applicant’s bundle. Its veracity was not disputed, and it was accepted as it purported to be. Evidence of the Applicant:
10. The Applicant, Limakatso Wonder Malefane, testified that she had complied with the Respondent’s PILIR (Policy and Procedure on Incapacity Leave and Ill-Health Retirement) policy in her application for temporary incapacity leave. Her application was accompanied by a declaration in support of her application by her Orthopaedic Surgeon, Dr Phillip van Sittert . The Respondent never requested her to go for an assessment by another Specialist and she never met with a Health Risk Manager during the Respondent’s consideration of her application.
11. She submitted her application on 3 September 2023, and the Respondent only responded on 3 February 2024 when it informed her that her application had been declined. The Respondent was in breach of its own PILIR policy which stated at clause 7.2.9 that the employer must grant or decline the application for temporary incapacity leave within 30 (thirty) working days. She then filed a grievance on 25 April 2024, the outcome of which was that the Respondent’s decision was upheld.
12. The Respondent had exercised its discretion to grant or refuse her application in an unfair manner by declining it. She was legitimately booked off by her Orthopaedic Surgeon for the period in question and was declared unfit for duty. The declaration from her Orthopaedic Surgeon, which accompanied her application for temporary incapacity leave, indicated that her incapacity was of a temporary nature due to the discomfort in her shoulder and the minimal use she had of the arm for purposes of lifting it. She had three surgeries on her shoulder prior to her application for temporary incapacity leave. Her last surgery, a shoulder replacement, was during June 2023, and she conceded that normal recovery from shoulder surgery was approximately 6 (six) weeks. Her application was filed months after her surgery and recovery period because she continued to have discomfort and limited use of the arm, including writing on the black board and typing.

Evidence of the Respondent:

13. Thulo Tsunke (“Tsunke”), the only witness for the Respondent, testified that the Applicant’s application for temporary incapacity leave was received on 15 September 2023. The application was forwarded to the Health Risk Manager, Thandile, for consideration and assessment. He conceded that there was no documentary proof that the application was sent to the Health Risk Manager, and a report from the Health Risk Manager was not in evidence.
14. In the Applicant’s grievance she did not object to the time that the Respondent took to finalize her application. He conceded that the Respondent was in breach of the PILIR policy, but only insofar as the prescribed time frame of 30 (thirty) days in which it must consider an(d) application for temporary incapacity leave.
15. The Applicant’s application was declined because her absence from work was excessive and suspiciously timed. Her surgeries were all planned to take place during a school term, and not during school holidays. Her application for temporary incapacity leave was also during the final term of 2023, and not during a school holiday. Her application was also months after her last surgery was done and her recovery period had lapsed, which was suspicious. He conceded that the Applicant’s application was accompanied by a medical certificate from her Orthopedic Surgeon who had declared her unfit for duty for the period 7 September 2023 to 2 January 2024.

ANALYSIS OF EVIDENCE AND ARGUMENT

16. Parties made oral closing arguments. Same will not be repeated herein.
17. In this matter, the Applicant bears the onus to prove that the Respondent has committed an unfair labour practice, as alleged.
18. Section 186 of the LRA states as follows:

“(2) “Unfair labour practice” means any unfair act or omission that arises between an(d) employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”.

19. The In Apollo Tyres South Africa (Pty) Limited v CCMA & Others (DA1/11) [2013] ZALAC (21 February 2013) the Court held that that term “benefit” refers only to existing rights or entitlements to which the employee is entitled ex contractu or ex lege and existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the discretion of the employer.
20. It is clear that a dispute of this nature can be determined in terms of section 186(2)(a) of the LRA as a claim of unfair labour practice related to benefits.
21. In the dispute at hand, I am called upon to determine whether the Applicant was entitled to the incapacity leave that she has applied for, and whether it was unfair of the Respondent to have denied the application.
22. The PILIR policy states in clause 7.2.9 that “The Employer must within 30 working days after the receipt of both the application form and medical certificate referred to in paragraphs 7.14 and 7.1.5, approve or refuse temporary incapacity leave granted conditionally.”
23. It is clear from the evidence that the Respondent has breached the PILIR policy in that the decision taken to refuse the Applicant’s application was taken far outside the 30 (thirty) day timeframe. It has been held that this in itself does not create an entitlement to have the periods of TIL which were denied, to be converted to periods of paid TIL. (See POPCRU obo LEE Mbongwa vs the Department of Correctional Services and another (D642/2015) handed down on 23 November 2016 by the Labour Court).
24. Clause 7.1.1 of the PILIR policy states that incapacity leave is not an unlimited amount of sick leave days at an employee’s disposal. Incapacity leave is additional sick leave granted conditionally at the Employer’s discretion. It is thus clear that there is no entitlement to temporary incapacity leave, but that the granting thereof is at the Respondent’s discretion.
25. From the documentary evidence, the Applicant’s application for temporary incapacity leave was made in compliance with the requirements as set out in the PILIR policy.
26. There is no evidence that the Respondent has complied with the PILIR policy in that a Health Risk Manager has undertaken an assessment of the Applicant’s application. No documentary evidence, perhaps in the form of a report, was submitted into evidence, and Thandile was not called as a witness by the Respondent. It thus cannot be held that the Respondent has complied with this crucial step in the determination of an application for temporary incapacity leave.
27. The Respondent’s evidence was that the Applicant’s application for temporary incapacity leave was declined because of her excessive leave of absence from work and the suspiciously timed periods of absence. On the Respondent’s own version, the application was not declined because sufficient evidence did not exist that the granting of her application was warranted. On the Respondent’s own version, the Applicant’s application was declined for reasons related to allegations of misconduct for abuse of leave.
28. The Applicant’s Orthopedic Surgeon declared her unfit for duty for the period 7 September 2023 to 2 January 2024, which period exceeds the period of application for temporary incapacity leave. The Orthopedic Surgeon’s report, in support of the application for temporary incapacity leave, indicated that the Applicant’s incapacity is not permanent but that she could still perform duties of an Educator, excluding anything that involves her lifting her left arm. It is clear that the incapacity was temporary, and in aid of her recovery.
29. The PILIR policy has at its aim the proactive and accommodative measures to be taken that also address the needs of the Respondent. Correspondingly, the policy places an obligation on both the employee and employer, and especially a stringent obligation on the designated Health Risk Manager in executing his/her duties.
30. The Applicant was able to prove that she satisfied her obligations in terms of the PILIR policy. The Respondent was unable to prove that the Applicant did not meet the requirements of the PILIR policy. It was further evident that the Respondent attempted to place an onerous responsibility on the Applicant in her application, which exceeded the requirements as set out in the PILIR policy. The Respondent’s reasons for declining the application for temporary incapacity leave were not motivated by medical findings, but rather motivated by elements of alleged misconduct.
31. It is trite law that a Commissioner (or the Courts) cannot play the role of an employer in evaluating whether a discretion was exercised fairly, but a Commissioner may play a supervisory role and test the fairness of the conduct of the employer. Accordingly, a Commissioner can scrutinize the Respondent’s discretion.

AWARD

32. The Applicant, Limakatso Wonder Malefane, was able to prove that the decision of the Respondent to decline her application for temporary incapacity leave constituted an unfair labour practice related to benefits.
33. The Respondent, the Department of Education – Free State, failed to comply with the requirements and its obligations in terms of the PILIR policy in the determination of an application for temporary incapacity leave.
34. The Respondent is ordered to grant the Applicant’s application for temporary incapacity leave for the period 8 September 2023 to 13 December 2023.

Minette van der Merwe
ELRC Panelist