V NAIDOO APPLICANT

and

DEPARTMENT OF EDUCATION –KWAZULU-NATAL RESPONDENT

ARBITRATION AWARD

DATE OF AWARD : 26TH SEPTEMBER 2017
ARBITRATOR : Saber Ahmed Jazbhay

Introduction
In the modern constitutional era, an employment relationship is akin to a marriage, and if you are in a position of an employer you have to ask oneself how you would treat your spouse in the case of personal tragedy or trauma and then how you would act accordingly.
This matter before me was born out of a serious medical event not under the control or fault of the Applicant having suffered a serious intracranial aneurism whilst on duty and in service as a Master Educator at the Reunion Secondary School, in Isipingo, Durban.
This medical condition necessitated urgent and immediate neurosurgery at the St Augustine’s Hospital, in Durban and an insertion of a titanium clip to stop bleeding and which, necessitated her being hospitalised and undergoing operations and therefore being out of service.
The facts are largely undisputed, even though the Respondent alleging, during its opening statement but led no evidence or witnesses, that the Applicant had not suffered the aneurism whilst at work and that it had interpreted and applied ELRC RESOLUTION 7 OF 2001, read in conjunction with the POLICY AND PROCEDURE ON INCAPACITY LEAVE AND ILL-HEALTH RETIREMENT (PILIR) , that she suffered the aneurism during school assembly on the 21st July 2009 and remained out of service and she was eventually medically boarded in January 2017 , that is 7 years and 6 months later after three attempts.
The Applicant contends that the foregoing ought to have alerted the Respondent of the seriousness of the incapacity and this ought to have galvanised it to be proactive, supporting, more caring, and compassionate and to have fast tracked her ill-health retirement not seven and a half years later. The evidence, however suggests otherwise and this cannot be ignored. The Applicant contends that she was left to her own resources to assert her rights and that she received no assistance whatsoever from the Respondent or any of its officials.
Instead of being expeditiously resolved ( it started in 2009) on the basis of compassion and good sense, the resulting dispute escalated to this level and the manner and degree of engagement between the Respondent and the Applicant is a cause of serious concern. Employers have a constitutional duty to ensure the well-being of their employees.
I am still surprised how often employers can be so short sighted where it comes to personal circumstances and the well-being of their employees and the financial prejudice as well as the stress they encounter when outcomes are delayed. As the cliché goes, justice delayed is justice denied.
It is undisputed that throughout the period of absence, the Applicant submitted medical certificates augmented with specialist psychiatrist reports at her own cost which, if needed to be expanded upon, the Respondent ought to have gone an extra mile, so to speak, and assisted the Applicant in obtaining those specialist reports. That this was not done touches on the importance of the need for a strong and progressive employer-employee relationship.

Details of representation and background
1. The matter was set down as an arbitration on the 14TH AND 15TH SEPTEMBER 2017. Applicant was represented by ADVOCATE SHAUN VAN VOLLENHOVEN whilst the Respondent was represented by Ms MB Mtethwa.

2. At the hearing, in which the Applicant was present, both representatives had provided me with a brief background of what had transpired so as to bring the matter to this point. I WAS HANDED THREE BUNDLES OF DOCUMENTS WHICH I MARKED Annexure A1, A2 and A3 ( for Applicant ) and B ( for Respondent)

3. It’s common cause that this is an issue about whether, in acting as it did, namely by its conduct the Respondent has incorrectly interpreted and applied the ELRC Resolution 7 of 2001 (the Resolution) read in conjunction with the POLICY AND PROCEDURE ON INCAPACITY LEAVE AND ILL-HEALTH RETIREMENT (PILIR) as well as the EMPLOYMENT OF EDUCATORS ACT No 76 OF 1998 (Educators Act) and in the process caused the Applicant severe financial prejudice.

4. It is apposite that I place on record that, in this matter, only the Applicant and a witness testified whilst the Respondent did not produce witnesses or lead any evidence. Shortly after the Applicant closed her case, the Respondent’s representative informed me that she wouldn’t be producing any witnesses. The parties requested and were granted time to submit their closing arguments by no later than Friday the 22nd September 2017. These closing arguments, I am pleased to record were timeously received.
OPENING STATEMENTS
APPLICANT’S OPENING STATEMENT (Through Advocate Shaun Van Vollenhoven)
(Arbitrator’s note : What is recorded in this part of this determination has been consistently repeated under oath and by reference must be read with what is recorded under the part where the Applicant testified and made submissions).

5. At all relevant times, the Applicant was a master educator at the Reunion Secondary School in Isipingo, Durban. She had joined as an employee on 1st March 1988.
6. On the 21st July 2009 during school hours, in fact during assembly, she suffered what is medically referred to as a cerebral ruptured aneurism that led to her undergoing an emergency operation at the St Augustine Hospital in Durban. Apart from physiological injuries she also suffered a psychological medical condition thereafter. She was under no medication for the traumatic experience nor was there prior medical history or medical condition experienced by her and, that in the past 5 years before 21st July 2009, she had in fact been off sick for a total number of four (4) days [ before that date].

7. She received no assistance, pastoral or otherwise from the Respondent or the head of department or from any official from the Respondent.

8. There was a collective agreement in place, namely the ELRC Resolution 7 of 2001( the Resolution) read with the Policy and Procedure on Incapacity Leave and Ill-Health Retirement ( PILIR) as well as the Employment of Educators Act No 76 of 1998 which operated as legally binding instruments creating obligations regarding the granting of leave in the circumstances of the present case.

9. She had, at all relevant times timeously submitted applications, supported with the requisite documentation such as medical certificates and reports, for Temporary Incapacity Leave (TIL) without the assistance of the Respondent or the Head of Department or the school and it was her sister, who would be testifying, who had gone through extraordinary lengths to obtain the necessary documentations necessary for submission of the TIL applications.

10. The Respondent failed to adhere to the peremptory time frames prescribed under PILIR and that in fact it took Thandile Health Risk Managers more than a year later to respond to her applications.

11. Her dispute is premised on non-approval or rejection by the Respondent of her TIL applications over three (3) specific periods namely
11.1 31st January 2014 to 31st December 2014 ( 11 months)
11.2 19th January 2015 to 31st January 2015 ( 12 days)
11.3 1st April 2015 to 21st May 2015 ( 52 days)

12. Following the foregoing she received a claim on the 3rd April 2017 ( she was ill-health retired in January 2017) demanding an amount of R105, 753-96 ( as per Bundle A1 at page 220) from the Respondent for allegedly being an “overpayment” and who unilaterally started deducting monthly amounts from her salary without her consent and without it following due process.

13. The reasons why the Respondent did not approve her TIL applications for those periods was (as per Bundle B at page 15) that she “should be able to perform adapted or alternate duties” and therefore ‘her workplace needed to be adapted to accommodate her’. This has to be read with Annexure A1 at page 30 which is a letter by the Principal of the Reunion Secondary School to the effect that the school could not make any offer to adapt the workplace to accommodate the Applicant.

14. Against her doctors’ advice, (repeated under oath as well) the Applicant had tried and in fact reported for duty on several occasions but due to her condition she was compelled to return home after a few hours at the school as she was unable to cope. The gravamen of her point is that the Applicant ought to have been alerted to her medical condition and it ought to have considered medical boarding or ill health retirement earlier rather than seven and a half year later in January 2017.

15. She reiterated that she had suffered the injury on 21st July 2009 and that she was only medically bordered or retired in January 2017, that is some seven and a half years later compared to the Premier of the Northern Cape Hazel Jenkins who had been retired within a year of her suffering similar medical condition.( see Bundle A1 at page 56).

16. She contends that the Respondent had not interpreted and applied the Resolution as well as PILIR in a rational, objective and fair manner. This is because the medical reports by three of her doctors, namely Dr Nadvi, Dr Pillay and Dr Naidoo as well as the Respondent’s own experts that she be permanently retired because of her medical incapacity. In other words despite the overwhelming medical evidence, the Respondent persisted in conducting itself as it did. She accused it of dragging its heels in her case.

17. As a consequence the Applicant has experienced financial hardship and prejudice due to the Respondent acting in breach of peremptory requirements of the Resolution, PILIR as well as the Employment of Educators Act.

18. Accordingly, the relief she seeks is as follows
18.1 That the Respondent approve of the periods in question
18.2 That the Respondent stops the monthly deductions and
18.3 That the Respondent reverses the amounts so deducted so far
18.4 That the Respondent must bear the costs
19. To summarise, the Applicant’s grounds of dispute were founded in:
19.1 Resolution 7 of 2001 (A1 p193-211) read with the following:
19.2 Employment of Educators Act, No. 76 of 1998 (A1 p212-218)
19.3 Policy and Procedure on incapacity leave and ill health retirement (Pilir) as determined in terms of Section 3(2) of the Public Service Act, 1994, as amended by the Minister for Public Service and Administration (A3 p1-29).

RESPONDENT’S OPENING STATEMENT (through Ms Mthethwa)

20. It is admitted that the Applicant was an employee and that on the 21st July 2009 she had “fallen ill” but the reasons therefor were unknown to the Respondent.

(Arbitrator’s note: It was provided with medical expert reports and certificates and its own doctors confirmed what she had experienced. If it was in doubt it should have had its experts examine the Applicant (over and above that which its experts had don) and led evidence. In any case I fail to see what this has to do with the TIL applications.)

21. The Respondent will prove that contrary to her stating that she had only been off sic for 4 days, it will prove that she had in fact taken 29 days off due to personal family issues prior to 2009.
(Arbitrator’s note. Inferentially this is to attack her credibility)

22. Contrary to her statement it will prove that she did not suffer occupational illness or injury and that there had been a prior medical condition that had manifested itself on the 21st July 2009. The Respondent denied that there was any similarity between what the Premier of Northern Cape, Hazel Jenkins had experienced and what the Applicant had experienced and that the Premier had been retired due to ill-health. The Respondent’s contention is that of the Applicant had suffered an occupational illness or injury she should have claimed in terms of COIDA.
(Arbitrator’s note. The Applicant did not make that claim that she had suffered from occupational injury or illness. Furthermore, it is important to record that thus far she has not denied the substantive allegations that the Applicant had made in her opening statement.)
23. The relief the Respondent’s seeks is for an award to the effect that it correctly interpreted and applied the Resolution read with PILIR, and, that the application be dismissed with costs.
The Essence of the dispute before me is as follows:
24. The Applicant has applied for temporary incapacity leave for the period long term and short term sick leave for various periods
24.1 31st January 2014 to 31st December 2014 ( 11 months)
24.2 19th January 2015 to 31st January 2015 ( 12 days)
24.3 1st April 2015 to 21st May 2015 ( 52 days)
and according to the employer her leave was not approved for those periods. In fact this is admitted by the Respondent.

25. She challenges the Respondent‘s decision to refuse her application for the periods in question.

26. She seeks the setting aside of the decision to decline her leave and to be reimbursed the monies deducted by the Respondent.

27. The Applicant was advised, outside the stipulated time lines, of the Respondent’s decision to refuse her leave for the periods.
The issue I am to decide is whether
28. Despite no arguments were presented to me, whether Council has the requisite jurisdiction to entertain the dispute.

29. The Respondent failed to apply the collective agreement in respect of the Applicant’s temporary incapacity leave for the periods in question.

30. I am also to determine whether the monies deducted by the Respondent for the period should be reversed and should my finding favour the Applicant what remedy may be appropriate in the circumstances.
NOTE WELL, I HAVE SUMMARIZED THE ARGUMENTS AS WEL AS EVIDENCE AND ONLY THE SALIENT POINTS HAVE BEEN INCLUDED IN WHAT FOLLOWS.
APPLICANT’S SUBMISSION UNDER OATH
31. The Applicant referred a dispute to the above Council relating to the interpretation and application (in terms of Clause 24(2) and 24(5) of the Labour Relations Act, 1995, as amended) of Resolution 7 of 2001 (the “Resolution”) to her applications for long term and short term sick leave for various periods referred to in paragraph 24 supra.

32. The interpretation and application of the provisions of the Resolution are further explained and developed by the Determination on Leave of Absence in the Public Sector (the “Determination”) and the provisions of the Policy and Procedure on Incapacity Leave and Ill-Health Retirement (“PILIR”) which documents are cross referenced and must be read conjunctively.

33. It is the Applicant’s case that the Respondent incorrectly interpreted as well as failed to comply with the procedural obligations and provisions of the Resolution read with the Determination and PILIR. She argues that the Respondent did not act in a rational, objective and fair manner in the way it dealt with her applications. She had timeously complied with all the requirements in terms of the Resolution and PILIR but that the Respondent had not complied with its peremptory requirements and in fact it had, through Thandile Health Risk Managers, only responded to her applications more than a year later and in breach of Resolution and PILIR.
ISSUES:
34. Whether the Respondent correctly interpreted the Resolution in relation to the Applicant’s applications for short and long term sick/incapacity leave?

35. Whether the Respondent complied with the provisions of the Resolution and or correctly applied the Resolution in relation to the Applicant’s applications for long and short term sick/temporary incapacity leave?
BACKGROUND: The undisputed and therefore common course evidence and facts , as testified by the Applicant are that:
36. She is employed by the Respondent as a Master Educator at the Respondent’s Reunion Secondary School located in Isipingo, Durban.

37. The Applicant had sustained cerebral ruptured aneurism that led to her undergoing an emergency operation at the St Augustine Hospital in Durban. Apart from physiological injuries she also suffered a physiological medical condition thereafter. This medical condition manifested itself during assembly whilst she was on duty.
(Arbitrator’s note: This fact was never disputed. The only departure is that the Respondent baldly averred that the Applicant had a prior medical condition and that she ought to have claimed in terms of COIDA.)
38. She testified that she had been under no medication for the traumatic experience nor was there prior medical history or medical condition experienced by her before the 21st July 2009 and, that in the past 5 years before that date, she had in fact been off sick for a total number of four (4) days .

(Arbitrator’s note: The Respondent’s representative presented no argument or evidence to discredit this version of the Applicant. The version she put to the Applicant which was denied was that the Applicant had taken leave for 29 days before 2009. Thus all she had presented during cross-examination was a version she had put to the Applicant who cogently denied the bald averments that were put to her by Mrs Mtethwa who failed to counter that with evidence and or witnesses).

39. The Applicant was incapacitated due to the cerebral ruptured aneurism which apart from the physiological injuries she also suffered a psychological medical condition thereafter. She went on to testify that was under no medication for the traumatic experience nor was there prior medical history or medical condition experienced by her and, that in the past 5 years before 21st July 2009, she had in fact been off sick for a total number of four (4) days [ before that date].

40. She also testified that she received no pastoral support or assistance, pastoral or otherwise from the Respondent or the head of department or from any official from the Respondent. It was not disputed that she had timeously applied for sick leave during the aforesaid periods and that she had continued to diligently submit medical certificates from her treating doctors in support of her applications for sick leave.

41. However, the Respondent failed to offer her pastoral support of any kind such as to advise the Applicant at the time that by virtue of the sick leave being continuous and due to the length of the sick leave, her normal sick leave would have expired and that therefore he was to apply for short or long term temporary incapacity leave. It was through the intervention and assistance of her sister that she was able to timeously comply with the prescripts of the Resolution and PILIR.

42. Only on the 3rd April 2017, the Respondent advised the Applicant of its intentions to recover monies from his salary for leave without pay in respect of his absences from duty on sick leave since June 2011.

43. The Applicant was at no stage previously advised of her right to apply for temporary incapacity leave and the manner in which and the prescribed forms that must be submitted in respect of such leave and also the reasons why the applications for sick leave was not approved. This was undisputed by the Respondent during the arbitration.
ELRC RESOLUTION 7 OF 2001 READ WITH PILIR AND DETERMINATION ON LEAVE IN THE PUBLIC SERVICE:
Resolution:
44. Clause 8.1 (Normal Sick Leave) of ELRC Resolution 7 of 2001 provides that “Employees shall be granted 36 working days sick leave with full pay in a three year cycle.”

45. The first cycle commenced in January 2001 and the three year cycle would have expired after three years on 2003/2006/2009/2012 and 2015.Therefore given that the Applicant’s first period of absence on sick leave for January and February 2011 would ordinarily have exhausted her normal sick leave entitlement with full pay, the Respondent was obliged to have advised her of the need to apply for temporary incapacity leave given that his sick leave continued thereafter.

46. Clauses 8 and 9 of ELRC Resolution 7 of 2001 provide for the general guidelines and process to be considered and applied by the Respondent when determining an application for temporary disability leave.

47. The provision is applicable to an employee such as the Applicant who has exhausted her normal sick leave credits in a cycle and who according to the relevant practitioner was required to be absent from work due to disability which is not permanent. Such employee may be granted sick leave on full pay notwithstanding the exhaustion of his/her sick leave credits for that cycle provided that:

47.1 It can be inferred that as this occurred during school assembly and following thereon her Principal is or ought to be aware and therefore informed of her illness and condition ; and the relevant registered medical practitioner has duly certified such condition in advance as temporary disability, except where conditions do not allow (Clause 9.2 the Resolution).The Applicant at all times submitted a medical certificate which clearly indicated the nature of the ailment and the period of absence on sick leave that was required.

47.2 The Respondent is obligated during the thirty working days from notice of the disability to investigate the extent of the employee’s inability to perform his/her normal duties, the degree of inability and the cause of such inability. In terms of clause 3.1 of PILIR the Respondent as employer is further obligated to perform such investigation in accordance with item 10(1) of Schedule 8 of the LRA .There is no evidence to suggest that this was ever done. (italicised for emphasis).

48. There is no dispute that PILIR as determined in terms of section 3(2) of the Public Service Act, 1994 applies to the Applicant and that it gives effect to the relevant clauses of the Resolution, as amended.

49. Clause 7.1.1 under the heading Temporary Incapacity Leave, states that incapacity leave is additional leave granted conditionally at the employer’s discretion, read with the policy and Procedure on Incapacity Leave for Ill-health Retirement determined by the Minister for Public Service and Administration in terms of sec. 3(3)(c) of the Public Service Act, 1994, (PILIR).
PILIR :
50. Clause 7(the Management of Temporary and Permanent Incapacity Leave) of PILIR expounds the Resolution and details the timeframes and obligations on both the Respondent as employer and the Applicant as employee.

51. The employee may apply for temporary incapacity leave with full pay on the prescribed forms in terms of PILIR for each period of absence (Clause 7.1.2 of PILIR). The Applicant was never advised of her obligations in this regard although she at all times submitted a medical certificate and normal leave forms in respect of each period of sick leave.

52. For an application for temporary incapacity leave to be considered, the employee must provide sufficient proof that he/she is too ill to work satisfactorily and attach a medical certificate from a registered medical practitioner certifying the condition as temporary with his/her application. Its undisputed that the Applicant at all times submitted a medical certificate in respect of each period of leave.

PILIR: Clause 7.1.5.1 and 7.1.5.2
53. It is provided in clause 7.5.1 that the employee must submit the application for temporary incapacity leave within five working days ( see clause 7.1.8) after the first day of absence. Clause 7.1.9.1 provides that should the employee not submit such an application, in the absence of compelling reasons the employee’s “manager /supervisor must immediately notify the employee that if an application is not received within a further period of two days”, the period of absence will be covered by annual leave (with the employee’s consent) and/or unpaid leave if insufficient annual leave credits are available and if the employee failed to notify the Employer of his/her choice. I other words, should the employee fail to submit the application (within the further two days) or fails to submit compelling reasons why the application cannot be submitted, the supervisor must immediately inform the relevant department that the absence must be covered by annual leave or as unpaid leave. Clause 7.1.9.2 goes on to provide that should the employee fail to submit the application within the timeframes and/or failure by the supervisor to properly manage the process should be viewed in a serious light .The Applicant was never advised of these provisions by her principal or by any official from the Respondent to whom all leave forms and supporting medical certificates were always submitted.
PILIR: Clause 7.1.8 and 7.1.9
54. It is apparent that the initial obligation is on the employee to submit an application for temporary incapacity leave. However, should the employee fail to do so within the prescribed timeframe, he/she is not barred from doing so but the onus shifts to the employer (supervisor). The employer must follow up with the employee and notify him/her of the need to submit an application together with the consequences should he/she fail to do so . The clauses categorically acknowledge that there will be circumstances in which the employee does not comply with the timeframes, which could be for reasons of negligence, impossibility of performance and or ignorance, thereby placing the ultimate onus on the employer to inform the employee. The employee cannot be held responsible for the consequences of any late submission of an application where the employer has failed to comply with its obligation to inform the employee of the need and timeframe in which to submit an application.

55. The employee may be subjected to a full health assessment by the appointed Health Risk Manager. In the present case the documents and the evidence as presented by the Applicant’s representative as well by the Applicant during her evidence in chief and this was never disputed by the Respondent, show that this was done by the HRM. This allows for a comprehensive assessment and evaluation which assists the Respondent as employer to determine how the Applicant’s employee’s duties may be adapted to accommodate his/her disability. The Applicant testified that the Principal of Reunion Secondary School, submitted in a letter to the Respondent that it could not offer the Applicant an alternative position as it could not accommodate her.
PILIR: Clause 7.2.2
56. The employer is obligated to, within five days of receipt of application:
56.1 Verify that the application is complete and signed correctly (which includes attachment of relevant documentation) and if the application is incomplete and or unsigned, the employer must immediately return the application to the employee for resubmission within a further five days. The resubmission date of the complete application will be recorded as the date of submission. The provision acknowledges that there will be circumstances in which the employee submits an incomplete application (in respect of information, documents and or signatures). It further places an onus on the employer to draw any defect in the application to the employee’s attention and request that the application be corrected and resubmitted. Accordingly, no application should be declined for incompleteness or non-compliance as the employer is obliged to bring such error to the attention of the employee prior to the employer considering the application. This, as the Applicant testified, never happened.
57. Temporary Incapacity Leave
57.1 Clause 7 of PILIR outlines the requirements and process to be compiled with when considering an application for temporary incapacity leave. Many of the obligations relating to proof of illness, attachment of medical certificates and consent to disclose of medical records by the medical practitioner are consistent with the provisions contained in the PILIR. The employee must further notify his/her supervisor of his/her Illness immediately and submit an application within five working days of the day of the absence. As stated previously, the Applicant at all times submitted a medical certificate in support of his application for sick leave. As the Applicant’s sister who assisted her during her period of debilitating incapacity testified that she had to do all the running around as no one from the Respondent was prepared to assist her and in fact were hostile towards her.
57.2 It apposite to repeat here that the employer is again obliged to inform the employee of the consequences of not making an application and the timeframe in which to do so should the employee not submit an application within the initial five day period of absence. The employer is again obliged to conditionally grant temporary incapacity leave with full pay for a period of thirty days subject to the outcome of an investigation into the health of the employee. It is the unchallenged evidence of the Applicant corroborated by her sister Janusha Naidoo that the Respondent had rendered no assistance whatsoever.
57.3 The employer is obliged to, consistent with PILIR, approve and/or refuse the application within thirty days of the date of receipt of the complete application. This time frame was never complied with. The Applicant testified that the Respondent only responded to her application over a year later.
58. The employer must notify the employee in the event that the medical certificate submitted by the employee is not in compliance with required form and or detail (validity). The employer must further notify the employee that a corrected medical certificate is required within two days of notification of non- compliance. The Respondent at no stage indicated any problem with the Applicant’s applications for sick leave and the accompanying medical certificates.
INTERPRETATION/APPLICATION (APPLICANT’S SUBMISSIONS)
59. The interpretation and application of the Resolution means, firstly that the clauses referred to supra must be read with the relevant clauses in the PILIR document; and, secondly, that the interpretation and application of the Resolution requires one to interpret and apply clauses in the context of said policies rather than in a vacuum.

60. In essence, the Resolution, and more particularly Clause 7 of PILIR and the other applicable clauses in the policies referred to, supra, determine the procedures andor time frames in terms of which the Respondent is required to respond to an application for temporary incapacity leave. The Applicant’s complaint in this referral is that the Respondent failed to adhere to those procedures andor time frames, and that in turn resulted in severe prejudice to her. In essence she referred the matter so that it could be determined at arbitration whether the Respondent was obliged to have adhered to and to have given effect to what the Resolution, read in conjunction with the applicable policies, required.

61. The Respondent was obliged to inform the Applicant of his right to apply for temporary incapacity leave and subsequently approve or refuse the application for temporary incapacity leave within thirty days of receipt of the application and medical certificates.

62. It is thus submitted that the facts show that the Respondent failed to provide pastoral assistance to as well as advise the Applicant, who was seriously ill and incapacitated, of the need to apply for temporary incapacity leave after her normal sick leave entitlement of 36 days was exhausted and further to investigate the application within 30 days. In addition, the Respondent failed to give effect to provisions of PILIR , for the Applicant was only formally informed over a year later that the periods applied for previously were no approved. The Applicant was only informed on 3rd April 2017 of the intention to recover monies from her salary for leave without pay. (Bundle A1, at page 220). She was therefore only advised on 3rd April 2017, much later that is, of the Respondent’s intention to recover monies from the Applicant’s salary for leave without pay for this period as an “overpayment”. This was, in my view totally irrational, insensitive and unfair considering that she was seriously ill since 21st July 2009 and was only medically bordered or ill-health retired in January 2017, that is 7 and a half year later and that too, as she testified after to failed attempts despite there being a surfeit of medical evidence that she should be permanently retired.

63. The PILIR policy states quite clearly that:
63.1 At 7.1.1. Incapacity leave is not an unlimited amount of additional sick leave days at an employee’s disposal. Incapacity leave is additional sick leave granted conditionally at the employer’s discretion, as provided in the Determination and PILIR.

63.2 However, before the point is reached where this additional sick leave may be granted at the employer’s discretion, both the employee and employer have to follow the procedures and timeframes set out in the two policies. Moreover, the discretion afforded to the Respondent was to be exercised judiciously after compliance with agreed guidelines and established process. It is the failure of the Respondent to interpret, apply and comply with the process and respective policies that is in issue.

63.3 In Clause 6.4 of PILIR, the employer’s obligations and responsibilities are stated quite categorically: The employer shall in terms of PILIR be responsible to process applications and complete reports within specified timeframes.
64. While there are clear timeframes that the Respondent as employer has to take once it receives the applicable documentation from the employee, there are also timeframes that the employee has to meet. It is trite that as the initial obligation rests on the employer, unless the employer fulfils that obligation, it has to follow that there can’t be a resultant obligation on the employee. However, in the event that the employer fulfilled that obligation and the employee did not meet the said prescribed timeframes and/or other requirements, the policies start afresh or further obligation rests on the employer to ensure that the employee meets those obligations.

65. If one reads and interprets the Resolution and PILIR, in my view, it is clear that the Respondent did not have the discretion to deviate from the procedures set out in the Resolution and/or those set out in PILIR policies, but was compelled to adhere to the procedures and timeframes. Thus in the circumstances where there was deviation, the Respondent was in breach of a collective agreement.

66. In terms of the decision the matter of Public Servants Association (PSA) obo Liebenberg v Department of Defence and Others-(2013) 22 LC 4.2.1., the Court found that where the employee and her union were dissatisfied with the employer’s refusal to grant temporary incapacity leave and the procedure for granting or refusing such leave was governed by the collective agreement, her remedy lay in the referral of a dispute over the application of the agreement to the bargaining council in terms of Section 24 of the LRA.

67. In the matter of Public Service Association of South Africa(PSA) and HC Gouvea versus the PSCBC, Commissioner R Lyster and Department of Land Affairs(Rural Development and Land Reform), the Labour Court resolved that employees cannot be subjected to retrospective leave without pay when an application for incapacity leave is declined. Such leave without pay can only be implemented from a date given to the employee to return to work, if the employee fails to return to work on the day. There was no such indication for the Applicant to return to work although it was her testimony that, against her doctors advise and orders she attempted to return to work but due to the debilitating effect of the physiological as well as psychological conditions she was experiencing she couldn’t cope and she was compelled to return home after a few hours. This, in my view ought to have alerted the Respondent to the need to be more proactive vis-à-vis the Applicant.

THE CONCLUSION AS ARGUED BY THE APPLICANT IS THAT
68. The Respondent has failed to interpret the provisions of the Resolution in accordance with the plain meaning and in circumstances where its supplementary policies (PILIR and the Determination) provide both procedures and timeframes.

69. Further, the Respondent has failed to implement and apply the provisions of the Resolution and in so doing, has failed to comply with its obligations.

70. Consequently, the entire process of considering the Applicant’s application for sick or short and long term incapacity leave concluded by the Respondent is flawed.
RELIEF SOUGHT BY THE APPLICANT IS FOR AN ORDER ON THE FOLLOWING TERMS:
71. The Respondent incorrectly interpreted and applied the provisions of ELRC Resolution 7 of 2001 read with PILIR in relation to the Applicant’s application for sick or Temporary Incapacity Leave;

72. Consequently the Applicant is suffering and will further suffer severe financial prejudice;

73. Therefore the Applicant’s applications for the leave for the periods in question be approved with full pay; and finally that the Respondent be ordered to repay any monies deducted from the Applicant’s salary and immediately stop any further deductions from the Applicant’s salary.
RESPONDENT’S SUBMISSION
74. It must be placed on record that after the Applicant had closed her case, the Respondent also closed their case without producing any witnesses or leading any evidence.

75. Ms Mtethwa submitted that she would be submitting closing arguments on the 22nd September 2017.

76. The Respondent did, however, puts its version to the Applicant as I have recorded supra.

77. It concluded, if I understood her line of questioning, that it correctly interpreted and applied the relevant provision in the Resolution and that the relief claimed must be rejected with costs.

CLOSING ARGUMENTS

The Applicant and the Respondent submitted written closing arguments which I shall summarise herein.

Applicant’s Closing Arguments

78. Counsel argued that it is undisputed that the Applicant suffered an injury on duty during school or working hours whilst in the employ of the Respondent and acting within her scope of employment duties, responsibilities and functions.

79. The Respondent, he went on to argue, attempted to down play the incident as a prior medical condition or an illness that the Applicant had and it simply manifested on the 21st of July 2009, at school during working hours. He submitted that the Respondent failed to support provide any corroborative evidence or to point these out to me in the form of medical support in the bundles of documents, it placed before me.

80. The Applicant’s off sick record the preceding five years displayed + – five days off sick which, he argued was ´remarkable and not consistent of an employee with an underlying (or pre-existing) illness or medical condition.”

81. It is argued further that the Applicant’s treating medical practitioners referred to an illness and did not tick injury on duty.

82. The Applicant’s unchallenged evidence and version was, corroborated by her witness Ms. Janusha Naidoo that he Respondent’s functionaries provided no assistance at all.

83. The argument is that the Applicant suffered an illness and not an injury on duty in response to the Respondent’s version during cross examination (remember that the Respondent led no evidence, produced no documents to gainsay its version or to produce any expert witnesses as it was incumbent upon it) as to why the Applicant had not submitted WCL – Workmen’s Compensation forms to the treating medical practitioners.

84. It is argued that she was undergoing a lifesaving emergency medical procedure, secondary illness thereafter and without any pastoral support or assistance from the Respondent if it cared so much she didn’t have to as she had suffered a medical event or illness.

85. The Respondent dealt with this matter from the outset in an insensitive, disrespectful, undignified and unprofessional manner as manifested by Ms. Mthethwa, on her own accord, or under instructions, attempting to deflect blameworthiness for the ruptured cerebral aneurysm to two preceding events (such as her donating a kidney to her brother in 2007 and the passing away of her father in 2008) in the life of the Applicant which had no bearing and which were no more than bald averments.

86. Ms. Janusha Naidoo, the Applicant’s sister who had also testified under oath at the arbitration proceedings provided clear and unambiguous answers to the issues raised by the Respondent during cross examination.

87. The Respondent, in essence failed to discharge the evidential burden and as the Constitutional Court held in President of the Republic of South Africa & others v South African Rugby Football Union & others 2000 (1) SA 1 (CC) at para 61, that ‘If a point in dispute (was) left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct.”

88. There was a raft of unchallenged medical reports that supported the Applicant’s version that she had suffered from a serious medical condition.

89. The Applicant testified that the Respondent failed to comply with the peremptory requirements of Resolution 7 of 2001 (which the Respondent never seriously challenge or raise during her cross examination of the Applicant. These, it is argued included the clause 9 pertaining to Temporary Incapacity Leave. Specifically
89.1 An educator who has exhausted her or his sick leave credit in a three year cycle and who, according to the relevant medical practitioner requires to be absent due to incapacity that is not permanent may be granted additional sick leave with full pay.

89.2 Such a condition must have been certified in advance by the attending medical practitioner as a temporary incapacity except where conditions do not permit.

89.3 The Head of Department may grant a maximum of 30 consecutive working days leave with full pay during which period an investigation must be conducted into the nature and extent of the incapacity. The investigation shall be conducted in accordance with item 10 (1) of the Schedule 8 of the Labour Relations Act, 1995.

89.4 If the educator is of the view that she or he has been unfairly treated as regards the granting of additional sick leave, she/he has the right to follow the grievance procedure and the relevant dispute resolution procedures in order to settle the matter.

90. Relating to clause 10 namely Permanent Incapacity

90.1 Educators whose degree of incapacity has been certified by a competent medical practitioner as permanent shall, with the approval of the Head of Department, be granted a maximum of 30 working days paid sick leave, or such additional number of days required by the employer to finalize processes mentioned below.

90.2 The employer shall, within 30 working days, ascertain the feasibility of: If the employer or the educator is convinced that the educator will never be able to render an effective service at her or his level or rank, the educator may proceed with an application for termination of service due to ill-health.

91. Relating to clause 11 namely Leave for occupational injuries and diseases:

91.1 Educators who as a result of their work, suffer occupational injuries or contract occupational diseases, shall be granted occupational and disease leave for the duration of the period they cannot work.

92.2 The Head of Department shall take reasonable steps to assist an educator to claim compensation.

92. The Applicant’s further unchallenged testimony is that she applied on 2 occasions, on the medical diagnosis of her treating specialists for ill-health retirement, the first two (2) applications were rejected on the basis that the Applicant could perform in adaptive or alternative duties, whilst clearly even on the documentary evidence in the Respondent’s bundle that she could not.

93. Almost 7.6 years later at the third attempt her was approved after the intervention of the Applicant’s current legal representatives with ill-health retirement from the 1st of January 2017.

94. None of the above peremptory requirements of the Resolution had been complied with. It was pertinently argued that the Respondent failed to conduct any investigations and dealt with both TIL and Permanent Incapacity not in the prescribed manner dictated by the Resolution. No time frames were complied with by the Respondent, whilst it grossly breached the very same obligatory provisions of the Resolution.

95. The Applicant, it is argued, unopposed testimony regarding the breaches of PILIR in respect of her medical incapacity is pertinent. Specifically Clause 4 relating to “Objectives”, namely the intervention and management of incapacity leave in the workplace to accommodate temporary or permanently incapacitated employees; and the rehabilitation, re-skilling, re-alignment and retirement, where applicable, of temporary or permanently incapacitated employees are facilitated, where appropriate

96. Clause 5 entitled “ Mission”

96.1 Adopt a holistic approach to health risk management, by seeking synergies with wellness and disease management programmes provided by employees medical schemes and by implementing sick leave management as well as rehabilitation and re-skilling structures in conjunction with health risk management;

96.2 Adopt a scientific approach to health risk management based on sound medical, actuarial and legal principles;

96.3 Involve the various stakeholders in the health risk management processes and structures;

97.4 Implement health risk management that is consistent, fair and objective;

97. Clause 7 relating to Temporary Incapacity Leave
97.1 An employee who has exhausted his/her normal sick leave, referred to in the Leave Determination, during the prescribed leave cycle and who according to the treating medical practitioner, requires to be absent from work due to a temporary incapacity, may apply for temporary incapacity leave with full pay on the applicable application forms prescribed in terms of PILIR in respect of each occasion.

97.2 For an employee’s application for temporary incapacity leave to be considered the- employee must submit sufficient proof that she/he is too ill/injured to perform his/her work satisfactorily. The application form must, regardless the period of absence, be accompanied by a medical certificate issued and signed by a medical practitioner that certifies his/her condition as temporary incapacity and if the employee has consented, the nature and extent of the incapacity. Please also refer to the Leave Determination for further details on the acceptance of medical certificates.

97.3 Employee is in accordance with item 10 (1) of the Schedule 8 to the LRA afforded the opportunity to submit together with his/her application form-
(a) any medical evidence related to the medical condition of the employee, such as medical reports from a specialist, blood test results, x-ray results or scan results, obtained at the employee’s expense; and
(b) any additional written motivation supporting his/her application;

97.4 An employee is requested to give his/her consent that medical information/records be disclosed to the Employer and/or its Health Risk Manager and to undergo further medical examinations in terms of the assessment process described in PILIR.

97.5 An employee must submit his/her application for temporary incapacity leave in respect of clinical procedures in advance, unless the treating medical practitioner certifies that such procedures have to be conducted as an emergency.

97.6 If overcome by a sudden incapacity, the employee must personally notify his/her supervisor/manager immediately. A verbal message to the supervisor/manager by a relative, fellow employee or friend is only acceptable if the nature and/or extent of the incapacity prevents the employee to inform the supervisor/manager personally.

97.7 An employee must submit an application form for temporary incapacity leave personally or through a relative, fellow employee or friend within 5 working days after the first day of absence.

97.8 If the employee fails to submit an application within 5 working days, the following arrangements apply:

97.8.1 The employee’s manager/supervisor must immediately notify the employee that if such application is not received within 2 working days, the sick leave period will be deemed to be leave without pay. If the employee fails to submit the application on time or submit compelling reasons or compelling reasons exist why the application cannot be submitted, the supervisor/manager must immediately inform the relevant personnel section/office that relevant absence must be covered by annual leave (with the employee’s consent) and/or unpaid leave if insufficient annual leave credits are available and if the employee failed to notify the Employer of his/her choice.

97.8.2 Failure by the employee to submit an application form within the stated periods, or failure by the supervisor/manager to properly manage it, must be viewed in a serious light and disciplinary steps should be taken.

98 Short period of temporary incapacity leave (1-29 working days requested per occasion)

98.1 The Employer must immediately on receipt of the employee’s application in the designated office register the date of receipt on the application form and a central register/database.

98.2 The Employer must within 5 working days from receipt of the employee’s application for temporary incapacity leave-
98.3 Conditionally grant a maximum of 29 consecutive working days temporary incapacity leave with full pay subject to the outcome of his/her investigation into the nature and extent of the employee’s incapacity. Please use Part C of the application form for this purpose. The employee must accordingly be notified in writing. Please use the example of the pro forma letter at Annexure C;

989.4 The Health Risk Manager must acknowledge receipt of the above-mentioned report within 2 working days and confirm in writing that the Employer shall receive feedback on the application within 12 working days. It is incumbent on the Employer to confirm that the Health Risk Manager receives the report and required attachments.

98.5 The Employer must within 30 working days after the receipt of both the application form and medical certificate referred to in paragraphs 7.1.4 and 7.1.5, approve or refuse temporary incapacity leave granted conditionally. In making a decision, the Employer must apply his/her mind to the medical certificate (with or without describing the nature and extent of the incapacity) contemplated in paragraph.

99. At clause 7.2.10 if the Employer-

99.1 Approved the temporary incapacity leave granted conditionally, such leave must be converted into temporary incapacity leave;

99.2 Refuses the temporary incapacity leave granted conditionally, she/he must notify the employee in writing- of the refusal; of the reasons of the refusal; that if she/he is not satisfied with the Employer’s decision, that she/he may lodge a grievance as contemplated in par 10; and that she/he must notify the Employer in writing within 5 working days of the date of the notice to him/her, whether or not the period of conditional incapacity leave must be covered by annual leave (to the extent of the available annual leave credits) or unpaid leave and that, if she/he fails to notify the Employer of his/her choice, the period will be covered by unpaid leave.

100 At clause 7.3 Long periods of temporary incapacity leave:

100.1 The Employer must within 5 working days from receipt of the employee’s application for temporary incapacity leave-
100.2 Verify that the employee has-
100.2.1 Contemplated and signed parts A and B of the application form, and obtained his/her medical practitioner’s inputs as per Part C of the application form. An incomplete and unsigned application form must immediately be returned to the employee. The returned application form must be resubmitted with five working (5) days. An incomplete and unsigned application form shall not be considered. The date on which the employee resubmits his/her complete and signed application to the Employer will be deemed the date of receipt for purposes of PILIR and the Leave Determination; and
100.2.2 attached to his/her application the under-mentioned documents/ information. Please use the checklist at Part D. provided on the application form. The Employer must not remove any documents provided additionally by the employee, since it may jeopardize the outcome of the application: Compulsory information and medical certificate as determined in the Leave Determination.

101 The Health Risk Manager must within 12 working days advise the Employer on the employee’s application for temporary incapacity leave for either the full period, if a secondary assessment is not necessary , or a maximum of 30 working days in those instances where a need has been identified for a secondary assessment. The purpose of the assessment is to-

101.1 Determine the invalidity of the application for temporary incapacity leave; Determine the need for the ongoing temporary incapacity leave; Determine the appropriate duration of the leave; Provide the preliminary advice on the management of the condition; and Advise a full health assessment, if applicable.

102 The Health Risk Manager and employer must adhere to the guidelines for incapacity assessment at Annexure G to enhance objective, equitable and consistent advice and decision-making.

103 The assessment by the Health Risk Manager must include, among other , the following :

103.1 The scrutiny of the available medical information; sick leave certificate(s) by the medical practitioner, additional information provided by the employee with his/her application in the form of the medical reports, test results and additional motivation, as well as the employee’s sick leave profile for the current and previous (if applicable) sick leave cycles, in conjunction with the employee’s annual profile for the corresponding periods (if applicable).

104 If the employee consent thereto, contact with the treating medical practitioner to verify information where necessary.

105 The health risk manager must forward its advise on the outcome of the primary assessment to the employer in respect of the following :

105.1 The invalidity of the application for incapacity leave; The appropriate duration of the leave; The categories contemplated in par. 7.3.6.2 (e), whilst maintaining confidentiality relating the medical information.

106 The need of the Health Risk Manager to proceed with the secondary assessment to thoroughly investigate-

106.1 The necessity for the ongoing temporary incapacity leave; The management of the condition; and Whether the incapacity is of a permanent nature and whether the employer should investigate and consider alternate employment, or to adapt the work circumstances duties of the employee in order to accommodate the employee in order to accommodate the employee, o to retire the employee on grounds of ill-health.

107 In such event, the Health Risk Manager must immediately continue with the secondary investigation.

108 The employer must within 30 working days after the receipt of both the application form and medical certificate, approve or refuse temporary incapacity leave granted conditionally , or where applicable the approval or refusal of additional temporary incapacity leave. In making a decision , the Employer must apply his/her mind to the medical certificate (with or without describing the nature and extent of the incapacity), medical information/records (if the employee consented to disclosure), the Health Risk Manager’s advice, the additional information supplied by the employee (if any) and all other relevant information available to the employer and based thereon approve or refuse the temporary incapacity leave granted conditionally , on conditions that the Employer may determine, e.g. to instruct the employee to return to work while the secondary assessment is undertaken . Such instruction should however, be considered and applied with circumspect. However, should the employee fail to adhere to such an instruction s/he expose him/herself to possible disciplinary action.

109 If the employer- approves the temporary incapacity leave granted conditionally , such leave must be converted into temporary incapacity leave; or refuses the temporary incapacity leave granted conditionally , it must notify the employee in writing- of the refusal ; the reasons for the refusal.

110 If the employee is not satisfied with the employer’s decision, that s/he may lodge a grievance.

111 That s/he must notify the Employer in writing within 5 working days of the date of the notice to him/her, whether or not the period of the conditional incapacity leave must be covered by annual leave (to the extent of the available annual leave credits) or unpaid leave and that, if s/he fails to notify the Employer of his/her choice, the period will be covered by unpaid leave.

112 In the instance where the Health Risk Manager identified and continued with the need for the secondary assessment, the employee must be informed concurrently with the decision, and the fact that s/he has to avail him/himself for possible medical examination, if the employee has given his/her consent. The employer may in such instances conditionally grant the employee additional days’ temporary incapacity leave pending the outcome of the secondary assessment.

113 Clause 7.3.5.2 provides that:

113.1 Once the Health Risk Manager has identified the need for a secondary assessment in its advice to the Employer, it musty automatically continue with such an assessment.

113.2 For purpose of the secondary assessment the Health Risk Manager or the Employer may request additional information from either the Employer and/or the employee to- Investigate, verify or expand information received; Provide further independent and impartial opinions on the nature and extent of the condition/s on which the application is based; and/or Ascertain more precisely the functional implications of the condition(s) on the employee’s work performance.

113.3 Once there is adequate information, consistent criteria will be applied to assess an application in an objective and equitable manner to determine the nature and extent of the employee’s incapacity, with due consideration to-

113.3.1 the need for ongoing temporary incapacity leave (i.e. beyond 30 working days),

113.3.2 the management of the condition; and

113.3.3 Whether the incapacity is of a permanent nature and whether the Employer should investigate and consider alternate employment, or to adapt the work circumstances/duties of the employee in order to accommodate the employee, or to retire the employee on grounds of ill-health.

113.4 The Health Risk Manager and the Employer must adhere to the following basic assessment criteria, in accordance with the guidelines at Annexure G, to assess an employee’s application and to enhance objective, equitable and consistent advice and decision- making: i)The nature and extent of the physical impairment, with reference to factors such as mobility, strength, co-ordination, balance, vision, hearing and pain. ii)The nature and extent of psychological/mental impairment, with reference to factors such as mood, cognition, behaviour, communication and motivation. iii) Job specific factors, such as activities of daily work, key performance areas, specific occupational requirements, quality of work, productivity and work habits.
113.5 Duration of the condition.
114.5.1 Residual functional capacity of the employee (the employee’s capabilities despite the medical condition/s), with reference to factors such as effort, tolerance, endurance and psychological functioning.
113.6 Potential to perform alternative work, taking into account the particular employee’s education, training, work experience, aptitude and age.

113.7 Rehabilitation and re- skilling potential, taking into account the reasonableness thereof with regard to the particular medical condition, the anticipated outcome, the availability of an appropriate service provider, the duration and cost.

113.8 Future earning potential of an employee, considering existing skills and plans to generate income.

113.9 The Health Risk Manager must divide applications for a long period of temporary incapacity leave into the following categories:

113.9.1 Employees who applied for clearly invalid reasons sand for whom temporary incapacity leave should be declined.

113.9.2 Employees who applied for valid reasons and for whom temporary incapacity leave should be granted for a certain period.

113.9.3 Employees who applied for valid reasons and to whom temporary incapacity leave should be granted subject to them undergoing specified medical treatment.

113.9.4 Employees who applied for valid reasons and in respect of whom the Health Risk Manager advised that his/her incapacity is permanent and whose cases the Employer needs to investigate/consider with a view to alternate employment, and to adapt the work circumstances/duties of the employee in order to accommodate the employee, or to retire the employee on grounds of ill-health, if applicable.

114 While the secondary assessment is undertaken, the Employer may instruct an employee to return to work, if considered appropriate.

115 If an employee-
115.1 Fails to adhere to such instruction; or Presents a medical certificate for the same condition under consideration, the employee may expose him/herself for possible disciplinary action.

116 Clause 7.4 relates to PERMANENT INCAPACITY LEAVE

116.1 An employee shall not directly access or apply for permanent incapacity leave.

116.1.1 The Employer may grant an employee up to a maximum of 30 working days permanent incapacity eave once s/he has following the above mentioned assessment process determined that an employee’s condition is permanent. The Employer must during this period and in accordance with the advice of the Health Risk Manager, ascertain the feasibility of alternative employment; or adapting duties or work circumstances to accommodate the employee.

117 In terms of clause 7.4.2, an employee, whose degree of incapacity has been certified as permanent but who can still render a service, may be redeployed horizontally with retention of his or her benefits. If the redeployment necessitates reallocation to a job of a lower grading, it must be explained well in advance and the continued utilization of the employee must, in this regard, be with her or his consent. If the employee’s redeployment entails retraining or retooling, the Employer must take requisite resources (time and financial) and potential returns into consideration before approving redeployment. The redeployment of an employee’s services must ensure the optimal utilisation of her or his competencies and may not compromise service delivery.

118 In terms of clause 7.4 if both the employer and the employee are convinced that the employee will never be able to render an effective service at her or his level or rank, the employee/Employer may proceed with the process of termination of service on grounds of ill health, which be dealt with in terms of section 17(2)(a) of the PSA.

119 In terms of clause 7.4.4 the Employer may extend the period, up to a maximum 30 working days in order to finalise processes already commenced. If the processes are not completed within 60 working days, the case must be referred to the Director- General: Public Service and Administration together with a report explaining the reasons for the delay.

120 Clause 8 refers to ILL HEALTH RETIREMENT

120.1 The employer must submit an application for ill- health retirement as soon as it is evident that an employee may not be able to return to work following incapacity. An employee may decide to apply for ill- health retirement.

120.2 The Respondent breached most of the peremptory obligations created by PILIR. Timeframes were fragrantly breached, delays unaccounted for and the Health Risk Manger came to a conclusion regarding the 3 non-approved period in a manner that was not objective, equitable or consistent advice and decision-making. The Applicant received no feedback during the process but only when 3 periods were not approved after almost a year each time.

121. It is unopposed by the Respondent that it failed to assist the Applicant at all in her TIL and Ill-Health retirement applications.

122. The Respondents deduction in A1 p220 is also unlawful, invalid and in statutory breach of Section 34 of the BCEA.

123. The Applicant’s evidence under oath was that she was never overpaid by the Respondent. It was argued that no version was put to the Applicant on this issue by Ms. Mthethwa. The Applicant’s version thus remained unopposed or unchallenged. The Respondent presented no evidence or witnesses to rebut the Applicant’s version and evidence, corroborated by Ms. Janusha Naidoo.

124. The reason regarding the non-approval of the three (3) TIL periods are “irrational, non-sensical, grossly improper and without any reasonable or logic basis.

Respondent’s Closing Arguments. The Respondent submitted a four page, therefore very brief closing argument.
125. Much of what was stated in the Applicant’s closing arguments is common cause, save for the allegation that the Applicant had suffered from the same illness or medical condition as the Premier of the Northern Cape Hazel Jenkins.

126. Despite the fact that it was admitted that that the Applicant fell ill at work (as opposed to its bone of contention that she had suffered an occupational injury) it is argued at para 22 could not prove that she was incapacitated and therefore the Respondent was entitled to disapprove the leave and to recover the money overpaid “while keeping her contract intact”.

127. The Applicant had not suffered occupational injury or disease according to the answering medical practitioners and that this” seem(ed) like an afterthought by her trying to milk (sic) the Department…”

128. It is argued that the Applicant did not make out a case for herself and that she contradicted professionals/specialists who treated her. ( It must be noted that the Respondent did not point out where and what these contradictions were).

129. The Respondent prayed that the application be dismissed with costs.

ANALYSIS OF EVIDENCE AND ARGUMENT
Brief prefatory observation
130. Despite the requirement that I had to record only the salient facts and evidence that assisted me in making the determination as follows, it became necessary for me to be as comprehensive as possible as it was incumbent upon me to justify the determination. I do so because the facts informing the determination are unique in that they provide an unchallenged (and very worrying) background as to how the Respondent, as employer treated the Applicant, its employee. This impacts on the Applicant’s rights guaranteed in the Bill of Rights to the Constitution.

131. It must also be recorded that the Respondent presented no evidence or argument whatsoever and immediately after the Applicant had closed her case, Ms Mehta also closed her case. Thus I was left to analyse the evidence and the testimony of the Applicant and her witness supported by very relevant documents which the Applicant’s counsel Advocate Shaun Van Vollenhoven assisted me by referring to them during his examination in chief as well as during closing arguments.

132. Its trite law that in order to remain within the scope of section 138 (1) of the Labour Relations Act the relevant provision of ELRC Resolution 7 of 2001, read in conjunction with PILIR, have been read with the applicable provisions relating to the terms and conditions of employment of employee by the employer.

133. Further in arriving at the decision hereinafter I have considered and analyzed relevant case law precedents evolving from previous and current decisions in respect of temporary incapacity leave.
Jurisdiction?
134. Although jurisdiction was not in issue, I found the decision in Public Servants Association O B O Liebenberg v Department of Defence and others (2013) 22LC 42 relating to jurisdiction very instructive. Does the Council have jurisdiction? I submit it does. My reasoning is as follows.

134.1 The issue of the jurisdiction of Councils to arbitrate disputes referred under section 24 of the LRA has been finally settled after much uncertainty.

134.2 The following are important sections of the Liebenberg judgment that deserve mention verbatim: “It had been common cause that the department was obliged by the collective agreement to notify the employees of the fate of the applications for TIL within 30 days. There is no basis for the Commissioner’s ruling that the directive which imposed that obligation had not been included in the collective agreement.” The Court, accordingly, ruled that the Council had jurisdiction to entertain the dispute under section 24 of the LRA, and remitted the matter to the Council to arbitrate on the merits.

135. Another decision namely PSA obo Gouvea v PSCBC and others delivered on the 26 February 2013 has relevance to this matter and it is important to record the following from that judgment so that the issue of granting or refusing applications for temporary incapacity leave may be out to rest. Pertinently in this judgment the court stated that an employee whose normal sick leave credits in a cycle have been exhausted had a right ( note well since the Respondent argued that it was not an automatic right ) to be granted additional Temporary Incapacity Leave (TIL) on full pay provided that she informed her supervisor that she is ill; ( There is no argument or evidence in this present dispute that this was not done by the Applicant) A registered medical practitioner has duly certified the condition in advice; ( The Respondent admitted that this was done but it could have obtained had it been proactive and diligent given the nature of the Applicant’s condition as supported by a raft of medical certificates and reports from medical practitioners. The employer was obliged ( “shall”) to investigate the incapacity in terms of Schedule 8,clause 10(1) within 30 working days. There is no evidence before me whether this was done by the Respondent.

136. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax, in context in which the provision appears, the apparent purpose to which it is directed and the material known to those who are responsible for its production. Surely, given the nature of its version put before me in argument, the Respondent should have produced expert witnesses to gainsay its version. That it failed to do is, in my view fatal.

137. Like Judges I must be alert to and guard against, the temptation to substitute what they regard as reasonable, sensible or business like for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation.

138. In the context of a contract which, in essence is what the collective agreement between the parties is tantamount to, it is imperative not to make a contract for the parties other than the one that they in fact entered into.

139. When dealing with matter related to the refusal by the Respondent as employer (which in essence is what happened here) to grant an employee temporary incapacity leave the first question is whether the period in question in which the Applicant as employee was absent from work runs before the or if after is it before the decision in Liebenberg as it will have an amazing impact on the issue of the jurisdiction of councils to arbitrate such disputes whether as “interpretation” or “application” of a collective agreement or any other guise e.g. benefits. In this dispute the periods in question extends to before and after crucial judgments.

140. If the period in question is after the Gouveia decision (delivered on the 26 February 2013) read with the decision in Liebenberg then only will the question of the application of the collective agreement be interrogated.

141. In the present case the applicant’s applied for TIL for the periods from
142.1 31st January 2014 to 31st December 2014 ( 11 months)
142.2 19th January 2015 to 31st January 2015 ( 12 days)
142.3 1st April 2015 to 21st May 2015 ( 52 days)

142. Bearing in mind the fact that the Applicant was ill-health retired in January 2017,she was only advised on 3rd April 2017, in the form of a letter that the Respondent intended to recover monies from her salary in respect of leave without pay and promptly proceeded to deduct moneys without following due process. It is necessary to remind the Respondent that there is a recent judgment that says that it cannot unilaterally make deductions without an order of court or without process .

143. The case law in question is that of Public Servants Association of South Africa obo Obogu v Head of Department of Health, Gauteng and Others, [2016] ZALCJHB 544 (30th December 2016). The fact that the Applicant is disputing the actions of the Respondent suggests that she did not consent to the deductions. And the fact that the deductions commenced unilaterally fortifies the foregoing.

144. This, the court per Tlhotlhalemaje J held was in direct contravention of the Provisions of the Public Service Act No 103 of 1994 and/or Public Finance Management Act 29 of 1999.

145. The rationale behind the decision of the court was that “the very basis of the principle of legality (which derives from section 1[c] of the Constitution) is that it is a mechanism that ensures that the state, its organs and its officials, do not consider themselves to be above the law in the exercise of their functions, but they remain subject to it.

146. It concluded that the provisions that I referred to do not permit “untrammelled self-help on the part of the State in recovering public funds.

147. There were deductions from the applicant’s salary. It is also necessary to remind the Respondent that Section 34 of the Basic Conditions of Employment Act, prohibits it, as the employer, to make any deductions unless the Applicant consented thereto or unless there is a collective agreement, court order or arbitration award permitting it to do so.

148. The period in question falls squarely after the period where the decision of the Minister of Safety & Security v SSSBC & Others (2010) 6 BLLR 705 (LAC) delivered on the 29 January 2010 read together with the Liebenberg decision (2013) thus applies . In terms of these decisions and in relation to the period in question the Council does have the requisite jurisdiction to determine the matter.
HAVING FOUND THAT COUNCIL HAS JURISDICTION

149. The next issue that requires detailed introspection and examination relates to the Employer’s interpretation and/or application of the Collective Agreement in respect of time frames.

150. In the Public Servants Association & Another v PSCBC & Others [2013] ZALD 3 (26/02/2013) the Court stated that where the State exceeds 30 days in investigating and giving an employee a response on his / her application, it cannot penalize the employee. Only from when the employee has been told to come back to work, can he/she be penalized. Remember that the Respondent was required as intended to find alternative employment to accommodate the Applicant within the public sector and as the Applicant testified it never did.

150. In reality where an employee applies for temporary incapacity leave (ito ELRC Resolution 7 of 2001) and the employer through the Health Risk Manager takes more than 30 days to give a decision, the period outside of the 30 days is at the peril of the employer and the employee will be paid until such time that he/she is told that his/her application is rejected and therefore he/she must return to work.

151. The Applicant applied for temporary incapacity leave for various periods and the employer communicated its decision much later.

152. The Respondent advised her that her leave was declined outside the 30 day period.

153. This dispute deals within the application of the Resolution and the Council has jurisdiction to enquire whether the Respondent applied the terms and conditions of the Resolution fairly or correctly.

154. The Respondent’s decision sought to have a retrospective effect, consequence whereof is that it amounts to an unreasonable and arbitrary exercise of discretion with unfair consequences to an employee.

155. At the very tale end of the proceedings, the Respondent’s Ms Mtethwa generally and therefore not specifically referred me, without the citations and not as an argument I must say, to Popcru and Another v The Department of Correctional Services and Another, [2016] ZALCD 25 ( 23 November 2016) to the effect that the employer’s failure to respond to an application for temporary incapacity leave within thirty working days, in terms of PILIR, does not translate to an entitlement to such lave. At para [24] the learned judge Witcher pointed out that there was not automatic entitlement to leave with pay where the employer did not respond within the time frame. She found the Gouvea judgment flowed from an analysis of clause 7.5.1.(b) of PSCB Resolution 7 of 2000 which, I note, is identical in operation to clause 7.3.5 ( and Clause 7.2.5) in Pilir. Pilir is a ministerial determination which amplifies PSCB Resolution 7 of 2000 and that it was unsustainable in the light of the fact that an employee applying for temporary incapacity leave has not been granted it yet and as lamentable as it was, the subsequent instruction to pay back money to which an employee was not entitled did not produce a decision that retrospectively deprives the employee of the right to the payment in question.

156. Whilst I take note of this judgment, this is not the argument of the Applicant. She complained of egregious breaches of provisions of ELRC Resolution 7 of 2001 read with PILIR and the fact that at the third attempt her application for ill-health retirement based on the original medical documentary evidence some seven and a half years later whereas if it had applied its mind rationally, objectively and fairly it would have reached that decision sooner after she had initially applied. She had proved on a balance of probabilities that the manner in which she was treated by the Respondent’s officials pointed towards conduct that was irrational , lacking objectivity and unfair. She persuasively argued that there were egregious breaches to the Resolution read with Pilir. I am also mindful of the judgment in the PSA obo Obogu, cited supra pertaining to the illegality of the conduct of the Respondent.

157. For the sake of completeness, I note that subsequent to Judge Witcher’s judgment,a further, albeit unreported, judgment has been handed down in the Port Elizabeth Labour Court by Judge Lallie in Department of Roads and Transport and JC Robertson v PSCBC and Others ( PR 40/14) [2017] ZALCPE that ‘the arbitrator’s interpretation of clause 7.5.1.(b)’ which was based on the Gouvea judgment could not be faulted. His reason was that when exercising a discretion whether or not to grant TIL, the Applicant ( in that case) was enjoined by PSCB Resolution 7 of 2000 to take into account the provisions of section 10(1) of Schedule 8 to the LRA. He , that is Lallie J, had found that the interpretation that the arbitrator had given was consistent with the peremptory meaning of “shall” in clause 7.5.1.(b) of PSCB Resolution 7 of 2000. I am inclined to agree since we now have two judgments which show that the Applicant was seriously prejudiced in that the Respondent had not exercised its discretion properly, objectively, fairly and in a rational manner, and the fact that after 7.6 years later it finally, at the third attempt approved of the application for ill-health retirement persuades me therefore that the Applicant is entitled to the relief, albeit substantially, she seeks.

158. Duly considering the detailed evidence as supported by arguments and documentation I have come to the conclusion that the Respondent has not correctly applied the provisions of ELRC Resolution 7 of 2001 read with PILIR in that it failed in many respects, in particular it failed to assist the Applicant as well as to timeously comply with the imprimaturs underpinning the Resolution and Pilir. I therefore find on the basis of the guidance given by our courts, that the Applicant is substantially entitled to the relief she seeks. The manner in which the Respondent dealt with the Applicant’s case goes against constitutional rights to human dignity and fair labour practice guaranteed under the Bill of Rights to our Constitution.

159. It is my finding that the Respondent has not applied the provisions of ELRC Resolution 7 of 2001 read with PILIR correctly in that it failed to act fairly, objectively and rationally and that in the light of the foregoing evidence the Applicant is entitled to the relief she seeks as couched below.

160. I do not deem it necessary to mulct the Respondent with costs as well. I do so having regard to section 162(1) of the LRA obliges courts of law (and by implication arbitrators) to take into account the requirements of law and fairness any costs order. Therefore I determine and make the following award.
AWARD
161. The Respondent incorrectly applied the provisions of ELRC Resolution 7 of 2001 in relation to the application by the Applicant for Temporary Incapacity Leave;
162. As a result of the foregoing, the Applicant suffered financial prejudice and will continue to be prejudiced if the Respondent’s decision to continue to deduct monies from her salary in spite of its act of omission is not reversed.
163. Accordingly, the period s 31st January 2014 to 31st December 2014 (11 months); 19th January 2015 to 31st January 2015 (12 days) and 1st April 2015 to 21st May 2015 ( 52 days) is to be recorded as approved paid Temporary Incapacity Leave.
164. The Respondent, the Department of Education, is ordered to reimburse the Applicant V Naidoo, with interest at the prescribed rate calculated from the date of this award to the date of repayment in respect of the amounts already recovered from her.
165. All further deductions must be stopped with immediate effect.
166. There is no order as to costs.
THIS DONE AT DURBAN ON THIS 26th September 2017

Commissioner: SABER AHMED JAZBHAY
(PSES 612-16/17 V NAIDOO v DEPARTMENT OF EDUCATION )