IN THE ELRC ARBITRATION
BETWEEN:

PSA on behalf of its member, NONDUMISO.E. TSHOBENI Applicant
and
THE DEPARTMENT OF EDUCATION – KWAZULU-NATAL Respondent

ARBITRATION AWARD

Case Number: ELRC 41-24/25KZN
Last date of arbitration: 31 OCTOBER 2024
Date of submission
of closing arguments: 10 NOVEMBER 2024
Date of award: 10 December 2024

C. VENKETIAH
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration commenced on 18 June 2024 and proceeded on 15 July, 30 September, 01 October and 30-31 October 2024. Both parties thereafter requested and were granted permission to submit written closing arguments by no later than 7 November 2024. The Respondent complied and submitted same on 6 November whilst the Applicant party submitted same on 10 November 2024.
2. The arbitration was virtually on the MS Teams Online Platform.
3. PSA, a trade union, referred this dispute on behalf of its member, Ms. N.E. Tshobeni (hereinafter referred to as the Applicant.) Mr Bomgumusa Dube, an official of the trade union, represented the Applicant.
4. The Respondent, was represented by Mr Bheki Mkhanyawo. A bundle of documents, marked exhibit A, was submitted on behalf of the Applicant whilst the bundle received Respondent is marked B. Various other documents were received from both parties during the course of this arbitration.
5. The proceedings were digitally recorded.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

6. The arbitration is in respect of a referral by the Applicant in terms of the Interpretation or Application of a Collective Agreement which is PSCBC Resolution no. 7 of 2000 (hereinafter PSCBC Resolution) as amended by PSCBC Resolution no. 5 of 2001 and by PSCBC Resolution no. 15 of 2002, read with the ELRC Resolution 7 of 2001 (hereinafter ELRC Resolution). These resolutions must be read together with the Policy and Procedure on Incapacity Leave And Ill-Health Retirement (hereinafter PILIR).
7. This dispute concerns the interpretation and application of a collective agreement. I have to decide whether respondent’s decision to refuse applicant’s application for paid temporary incapacity sick leave for the two periods between July to December 2020 was unfair, and if so, the appropriate relief.

BACKGROUND

8. The Applicant was employed as an educator at Luphongo Primary School in the Harry Gwala district when the dispute arose. She was thereafter promoted to the post of principal at another district where she currently serves.
9. The Applicant was ill for the period July 2020 to December 2020. She had previously exhausted her sick leave, she applied for temporary incapacity leave (hereinafter TIL) over two periods viz; 27 June to 17 September 2020 and 18 September to 15 December 2020. SUMMARY OF EVIDENCE AND ARGUMENTS
10. The evidence of the parties is summarized herein and includes testimony in chief, cross examination, re-examination and any questions asked by myself for clarity. Only the most pertinent information and salient argument is reflected in this summary.
11. Mr. Dube stated in his opening statement that the dispute relates to the Applicant being denied TIL in contravention of PSBC Resolution 7/2000 read with ELRC Resolution 7/2001. The process must be finalised within 30 days however the Respondent only informed the Applicant over 600 days later. The Applicant was not timeously informed of the outcome and not notified that she had to resume duties. The Applicant’s case is that the leave should have been provisionally approved in terms of the Resolutions. The respondent should have called her back to work. The respondent had the choice to terminate her if 15 days passed without resuming duties. The Applicant was unfairly prejudiced because the Respondent recovered monies from her salary where she had not been aware that her leave had not been approved. The Agreement also provides for instances of both monetary recovery and non monetary recovery, however the Respondent chose the route of monetary recovery.
12. Mr Dube gave a very lengthy presentation of argument prior to the testimony of the Applicant. As it already forms part of the record I will summarise the most relevant argument:

a) POINT 1: In terms of paragraph 7.5.1of the PSBC Resolution 7/2000. (Page 50 Bundle A) a person whose normal sick leave credits exhausted, and who has a disability that is not permanent and certified by a medical practitioner may be granted additional sick leave, provided the supervisor is informed. The employer then has 30 working days to assess the extent and degree of the inability to perform duties via investigation conducted in terms of Item 10(1) of Schedule 8 of the Labour Relations Act. The employer will then specify the level of approval.

b) Bundle B page 31 the ELRC Resolution 7/2001 clarifies the PSCBC Resolution 7/2000 in paragraphs 9.1 to 9.5 Dube submits that paragraphs 9.3 to 9.5 empower the Head of Department (HOD) with the authority to make the final approval.

c) Bundle A page 87 the Procedure and Procedure on Incapacity Leave and Ill Health Retirement is a nationally approved document which directs that a letter must be sent to the Applicant advising of the of the decision to grant temporary leave. Then HOD must make final decision to approve the TIL or not, and communicate the outcome within 30 days to the Applicant. The Applicant avers that the Respondent did not comply with the requirement to communicate the decision to approve or decline within 30 days.

d) Referring to the Applicant’s application for TIL, Dube averred that on Bundle B Page 105, the HOD or delegate must confirm that the information given is factual. The form was not signed by the HOD, instead signed by the district director who is a delegate. He submits that he requested the proof of delegation of authority from the Respondent during the discovery process but instead the Respondent informed via email that it will explain the delegation at this hearing via witness testimony (email per page 88 Bundle A).

e) The Applicant submits that only the HOD must make the final decision and avers that the district director signed the document without proper delegation, where it is directed in the PSCBC Resolution (Bundle A Page 114) there must be a letter of authority communicated to the delegate. The validity of delegation is in question. Dube submits that this maladministration placed the Applicant at a disadvantage. The Respondent has acted contrary to the provision provided that the HOD must make the final decision. This incorrect procedure nullifies all actions implemented without due authority, especially the deduction of the Applicant’s salary.

f) Bundle A P106: The summary of recommendations is blank and indicates that a full report and recommendation is attached. The Applicant requested this report in pre arbitration but did not receive it however it forms part of the Respondent’s bundle. The preparation of the Applicant’s case was thus prejudiced in this regard. On P107 the part noting “decision of HOD” is blank, and incomplete. The Applicant is still not aware of whether her application was approved or not yet it has been 3 years since.

g) Bundle B Page 72: the first application for TIL was for a 3 month period between 23 July-17Sep 2020 was submitted by the Applicant on 20 July 2020 (per Page 85). The second on Bundle B P114 was for a further 3 month period between 18 September 2020 to 15 December 2020. On Page 128 there is a signature of the HOD but no name is noted. Dube submits that this signature grants conditional approval subject to investigation.

h) Point 2: The Applicant was only notified of outcome in June 2022 when she received 2 letters. The 1st Letter: (per bundle A Page 25) indicates a partial approval with reasons and granted sick leave without pay. She was invited to utilise her annual leave and instructed to authorize same in writing by 23 November 2020 or to lodge a grievance if she disagreed. The said letter is written by L.L. Vezi but not signed or dated.

i) The 2nd letter (per bundle A Page 27) has the same content and notes that the period 1 November to 15 December 2020 is not approved. The reason for non approval was noted as “no specialist involvement”. It is also not dated. The Applicant was directed to respond by 13 March 2021 but received the letter in June 2022 a year later. The Applicant avers that she never had the chance to respond because she received the correspondence outside the actionable period. When school re-opened in the 1st week of August 2021, the Applicant went to enquire about deductions already effected by the Respondent in terms of monetary recovery. The Respondent had two options and chose the monetary option. The Applicant was asked to lodge a grievance (Page 20, Bundle A) which she substantiated with a motivation (Page 22). The Applicant submits that she did not sign any document to authorise any deduction and was not informed of the final decision. She submits that she should have been afforded an opportunity to respond to the original offer to deduct her leave.

j) The outcome of the grievance proceedings was that her complaint was declined as there was no detailed report submitted (Bundle A page 10) and that she had failed to prove that she was unable to work.

k) Dube submits that the respondent should view this mismanagement in a serious light and steps must be taken against those who did not comply with the policy. The letters were given 2 years later in 2022. If the applicant were at fault they had enough time to deal with her in terms of its disciplinary policy (Bundle B Page 21).
l) In Bundle A Page 173 paragraph 7.3.5.1(e), the requirement is that the Employer must consider the medical records, health risk managers advice, and any additional information supplied to determine whether or not to approve the leave granted conditionally. In this case the Employer only considered the health risk managers advise only. The paragraph is important because it states that one of the determinations the HOD may make is to instruct the employee to return to work while an investigation is being undertaken. If the Respondent complied with the provisions they would have acted accordingly. If the Applicant failed to return, the Respondent had the option to engage disciplinary action.

m) The Applicant made an application for transfer so that she could recover and be closer to family in Pietermaritzburg. The said hearing (Bundle A Page 26) occurred on 27 Oct 2020. The Employer could have seized the opportunity to give her the outcome.

n) In Bundle A Page 129 the debt recovery process is stated in paragraph 9.7. of the Debt Management Policy. If the employer makes a decision to proceed with recovery, the debtor must be advised of the option to lodge a grievance. If lodged, the matter must be held in abeyance pending the outcome. If no grievance is lodged the docket is escalated to the finance component. The Employee must be informed in writing and no more than 25% of the employee salary must be deducted. This is an official departmental policy approved in 2018 and complies with KZN Provincial Treasury Regulations (Bundle A par36, Page 154).

The Applicant’s case (Testimony)

13. The Applicant testified that she had 21 years service as an educator and is currently a school principal.
14. With regard to the dispute, she testified that on 17 June 2020, she was sick and consulted Dr Pillay, a psychiatrist who diagnosed her with severe depression. She was admitted to Oatlands hospital. She called her superior Mr Mjwara and informed him of the situation. She was discharged in July 2020 and Dr Pillay certified her unfit for duty until September 2020. She completed sick leave forms for period 17 July 2020 to 17 September 2020 citing her Post Traumatic Stress Disorder as a reason for ill health.
15. The Applicant testified further that Mr Mjwara came to the hospital and handed her an incapacity leave form and asked her complete the form and get her doctor to complete some parts. When she had completed them Mjwara came to Pietermaritzburg to collect it. She submits that he should have handed to the forms to the circuit office, who would then send them to district office, and thereafter the provincial office. She resumed duties in February 2021 and had not had any communication from the department. In June 2022 she was shocked to receive a letter, indicating that her temporary incapacity leave was not approved (per page P25). It was written by Ms. Vezi. There was a space for the district director to sign but there was no name or signature thereon. She testified that the principal at the school handed her two letters in a brown envelope relating to her non approval of TIL were contained therein. She had received no communication before this date and nothing thereafter.
16. She the referred to page 27 Bundle A and testified that Dr Pillay advised her to see a GP as she had a new problem which was Body Swelling. She informed Mjoka that Dr Thusi gave her an extension of leave grom 18 September 2020 until 15 December 2020.
17. She stated further that when she received the two envelopes, she immediately lodged a grievance, a hearing was held and Ms. Vezi told the hearing that the application was lacking medical reports. She submitted that had she been made aware that the TIL application had been rejected, she would have immediately sought to comply with the requirements by submitting the relevant information. She also revealed that in the interim, Dr Thusi had passed away.
18. She stated further that at that time in October 2020, she made an application to the Department to transfer her from Umzimkulu to the Umgungundlovu district to be closer to family who could assist her with her illness. Instead, she was given an opportunity to work at the Ugu district in March 2021. She was promoted to the post of principal in 2024.
19. Save for the above submissions, the essence of the Applicant’s testimony is reflected in the oral argument of Mr Dube and does not bear repeating.
20. Under cross examination the main point of contention was that the TIL form that was completed by both the Applicant and her doctor includes instructions that a medical report had to be attached. Although the Applicant conceded that she did sign it, she was unaware of the requirements noted therein, she submitted that this was a “new” form and that staff had never been trained on how to complete the form.

The Respondent’s case

21. Mr Mkanyawo submitted the following oral argument in support of the Respondent’s case:

a) The period of leave from 17 July to 17 Sep 2020 had been partially approved. The 2nd period between 18 September 2020 and 15 December 2020 was not approved. The Applicant was on temporary incapacity because her sick leave was exhausted. The PILIR Amended Policy, Determination on Leave of Absence (Page 232 Bundle B par 3.1) states that if sick leave is exhausted the employer may grant conditional leave, and within 30 days must conduct an investigation in terms of 10.1, Schedule 8 of the Labour Relations Act. This is not unlimited amount of leave (par 7.1.1) and is subject to the employers discretion which is informed by the recommendation of the health risk manager (pars 6.3 and 6.4) and makes a final decision, that decision to approve, partially approve or disapprove.
b) The Thandile Health Risk Management (THRM) document on P157 sets out the Objectives of assessment which is a peer review of all medical certificates and reports. THRM will then advise the employer on its findings but it is the employer who will take the final decision. The employer may deviate from the recommendation but “it is very rare to deviate”.

c) The application goes from the District office (where the Applicant reports) to the district manager then to the district director who holds the highest post. The district director is the HOD and will delegate staff to deal with matters. The district director oversees 16 directorates and thus it is difficulty for her to do everything.

22. The first witness to testify on behalf of the Respondent was Ms. Lindile Vezi, who is the Deputy director at Harry Gwala and works at Human Resources support services. She testified at length and testimony and cross examination lasted 2 days. Her testimony is summarised herein.
23. She testified that the Respondent uses a service provider, viz, Thandile Health Risk Management (THRM) to assess applications for temporary incapacity leave (TIL). They make a recommendation to the Respondent. The Respondent makes a decision to approve or deny the TIL. If the employee is not satisfied with the outcome, the employee may lodge a grievance or may elect to use annual leave credits to cover the period denied. The employee is then informed in writing. The witness testified that the Applicant was indeed notified of the outcome. The process is that the HR department informs the employee telephonically. A letter is then issued to the circuit office and the said office alerts the school principal to fetch the letter. Currently the process has been changed and the employee is informed via email.
24. Vezi testified that her office initially called the Applicant on cellphone to tell her about rejection of her application, and whilst the Applicant was informed during the 1st telephone call, the Applicant stopped answering further calls. Letters were sent out thereafter (page 155 and 164 Bundle B) informing her in writing of the rejection of her respective applications.
25. Under cross examination on this point, Ms Vezi testified on the procedure that the HR department followed in accepting the application and informing the Applicant of the recommendation from THRM. She testified that HR received the application form from the Applicant, checked it, and requested additional information which the Applicant did not supply. HR then signed it and send same to THRM. HR has a turnaround time of five days and the application was sent on 30 October 2020. THRM replied and HR notified the Applicant telephonically. Thereafter HR sent the letters to the circuit management. At a later stage HR advised her that she has a right to lodge a grievance and give additional information from a treating specialist. The Applicant only responded when HR advised her that they will treat the absence as Leave Without Pay (LWP). Further, the Applicant did not answer telephone calls from the district office. Ms. Vezi also stated that the outcome of approval or refusal is sent directly to the Applicant and not the HOD or DD. The Applicant is notified telephonically and the letter is sent out the same day. The Applicant is advised that she will receive a written communication and that a grievance form is attached thereto.
26. When challenged as to why HR then called the Applicant a 2nd time, Ms. Vezi responded that the Applicant had been given a date (viz 31 March 2021 in the letter on page 155 bundle B) on which to respond and the Applicant failed to do so. They called her to check if she is intending to submit a grievance, or convert the leave to capped leave. The Applicant failed to answer the calls. Ms. Vezi also submitted that the Applicant was advised in the letter that if no response was received it would be regarded as Leave Without Pay (hereinafter LWP). Vezi also testified that the letter was fetched by the circuit office on 28 January 2021. She stated further that the register where the principal signed when he collected the letters was available and would be produced. (The Respondent produced this register on the next sitting when the cross examination of Vezi continued as well as the register that showed that the letters were collected by the circuit office and appear on pages 271 and 272 of the Respondent’s additional bundle).
27. In her testimony Ms. Vezi referred to page 13 Bundle B, which is the leave record from the PERSAL system that shows that the TIL for the period 24 August to 17 September 2020 (25 days) was rejected and thus determined leave by the employer as without pay, and that the TIL for the period 18 September to 15 December 2020 (89 days) was rejected and thus determined leave without pay, The determination to convert the leave to LWP only arose when they received no feedback from the Applicant. The amount to be recovered from the Applicant was determined by the employer as R108 000.00.
28. The witness testified that the Applicant did lodge a grievance (page 11 Bundle B) and the hearing was held on 23 August 2023. The Applicant was advised that the rejection of the application was due to missing documentation, specifically a specialist report as there was no report from a specialist regarding her condition. The employee must consult a specialist, not a GP. Thie specialist report must be accompanied by blood tests, x-rays or any other relevant information, the assessment requires detailed medical information. Her grievance application was thus dismissed. In cross examination, Vezi conceded that Dr Thusi was a Specialist GP, however she explained that this doctor was not relevant to the condition that the Applicant had applied for the TIL, which was psychological.
29. Vezi also testified that the Respondent does not conduct the investigation into the illness of an applicant for TIL. The reasons, she submitted, is that “we are not a medical expert, we cant investigate beyond what we know”. She stated that HR captures the application and sends it to THRM who have a team of medical professionals who assess the applications according to their policies. THRM will then make recommendations to the department (Respondent).
30. Mr Dube challenged the witness that per PSCBC Resolution 5/2001 (Bundle A Page 50-51), states that the applicant must fill the form and consult with a supervisor and consult a medical practitioner and if the deputy director recommends this then it means the application has complied with the requirements. Ms. Vezi responded that the person responsible checks if the form was completed and accompanied by medical evidence and that is all that they do. The documents are thereafter sent to THRM for investigation and recommendation.
31. She testified further that the report from THRM appears on p159 – 160 (par 4.1-5.2) Bundle B for the period 18 September to 15 December 2020 and notes that there was no specialist involvement and that the information received did not validate the period of incapacity that was applied for. On page 72 of Bundle B, the TIL Long Period form which is the prescribed form for periods over 30 days of absence was filled in by the Applicant. The form notes in paragraph 5 that the applicant bears the onus of proving that he/ she is too ill to work and must attach medical records, blood tests and X-Rays in support of the application for TIL,
32. Ms. Vezi was challenged under cross examination as to why the letter on page 155 is undated. She responded that the template was designed by Head Office. HR refers to the signature date on the register when it is recorded as when sent out. She also responded to a question on the lack of signature. She stated that this unsigned letter is the one that is one the HR file but that she signs the copy that is sent out to the Applicant. She also responded when challenged that there is no signature for “Deputy Director”. She responded that the letter should say “District Directorate” and not Director as the Director is not required to sign. She explained further that it was a misprint/ human error. HR is given a format on how to write the letter. HR removes the word Head Office and writes District Directorate instead.
33. Ms. Vezi also confirmed that there is a register for when the letter is sent out to circuit and a register that is signed by the principal when he picks up the letter and that she could produce them if it is still available at HR office and Circuit office respectively. She disputed the version that the Applicant was given the letters in June 2022 and stated that the Applicant was informed of the outcome telephonically and told to expect a letter. If she did not receive the letter, she should have asked the principal if he had fetched it, She stated that HR understands that sometimes doctors take a long time to respond. Ms. Vezi stated that she was unaware if the Applicant was in hospital at the time she was telephoned.
34. Ms. Vezi further stated that the Applicant did not advise when she had received the letter dated 29 March 2021, signed by herself, (page 154 Bundle B) because it is the letter informing of the decision to commence with LWP. If the Applicant alleges that she received the letter in June 2022, it would be strange that she was unaware of the situation because recovery in terms of LWP would have already been approved to commence. She should have filed the grievance before the commencement of LWP and waited for a new outcome.
35. Under cross examination Mr Dube put it to the witness that there was no legislation that empowers her to act on the recommendation of THRM instead of a final decision by the HOD, Ms. Vezi responded that HR uses the policy and procedure on incapacity leave and policy on retirement and termination as well as the directive on leave of absence in the public service.
36. She also confirmed that there were in effect two types of “approvals”. The first one is made by the district director who will approve TIL conditionally and refer the documents to THRM. THRM will then either approve or reject the application. She stated further that the Department does not deviate from the recommendation of THRM.
37. Mr Dube also referred to page 242 which is the PILIR Policy par 7.5.3.1e) which states that the employer must within 30 days of receiving documents grant or reject TIL and must apply its mind to the medical certificate and all relevant information. The employer may instruct the employee to return to work while a secondary assessment takes place and a refusal to return could result in disciplinary action. The witness responded that the said paragraph refers to forms and referred him to paragraph 7.1.5.2 on page 234 where it states that the application form must be accompanied by medical certification. The rest of the cross examination all pertained to the Applicants position that the Respondent should not accept recommendations of THRM as the policies envisage that the HOD makes the final recommendation. The witness consistently replied that the departments reliance on the said recommendations from THRM is “accepted practice” and mostly due to their being medical practitioners while the HR department and HOD were not.
38. The witness responded further that HR did not engage the option to instruct the Applicant to return to work rather they gave her a chance to respond. She accused Dube of referring to that section because it suited him to do so, and she stated that HR always gives the Applicant a chance to respond rather to instruct a return and invoke disciplinary process in respect of refusals. She re-iterated that HR personnel are not doctors and that her department did not know extent of her illness. The Applicant did not respond to any letter, however, she came to the HR office and advised that her doctor had passed away. The Applicant was advised as to what steps to take and instead she chose not to.
39. The Respondent second witness was Ms Ivana Singh who is an Administrator at the Debt Section. She testified that in 2020, she worked as a capturer and she received a docket from HR to process LWP in respect of the Applicant. She stated that an amount is calculated using a formula. She testified further that paragraphs 9.3 and 9.4 of the Debt Management Policy (page 262 bundle B), prescribe that the Applicant must be given an opportunity to submit written motivation within 14 days from the date of the letter and if the Applicant failed to do so, then the recovery process of will continue. She stated that the Applicant received the letter but never communicated with the debt section.
40. Further to this (per paragraph 10) once the amount to be deducted is determined (which cannot exceed 25% of the monthly income), the Applicant is afforded another 7 days to make written representations regarding the deductions. Ms Singh testified that the Applicant was given more than this amount of time but they did not receive any feedback from her. The policy also notes that the official who hands the letter to the Applicant (envisaged in paragraph 10.3) is the school principal who would have had to advise if she had refused the receipt of the letter. Under cross examination she explained further that the assistant director hands the letter to the circuit office to hand to the principal to serve on the Applicant, and will inform finance department if the letter was not fetched by the principal. She confirmed that when the principal fetches the letter he will sign for receipt thereof on a register at circuit office.
41. The said letter appears on page 208 and is dated 06 May 2021 where the Applicant was advised of the debt of R110 950 and that installments of R4622.92 will be deducted from June 2021, She was advised to respond within 7 days as per the letter but she did not. Despite the calculation, the Department showed leniency as the Applicant is still in the service and made a decision to recover R2400 per month for 45 months instead.
42. The calculation on page 219 shows that the Applicant was promoted in 2022. The recovery then would have been on the calculation of 25% an amount of more than R6000 per month. However they approved the amount of R2465.55 over 45 months and the Applicant’s payslip shows 2 deductions of R1232.77 per month in respect of the two recovery periods.
43. The Respondent’s third witness was Mr Mjwara who is the school principal at Luphongolo. He testified that the Applicant taught grades 4 and 5. She was absent for 7 months between July 2020 to Jan 2021. The learners were left unattended and after 1 month, he had to make internal arrangements to distribute her workload.
44. He also testified that he had signed for the receipt of two envelopes at the district office on 4 February 2021, which is evidenced by the register on page 271 Bundle B where he had recorded his receipt and signed therefore. He testified that he had no knowledge of what the envelope contained as it was sealed. He handed the envelope to the Applicant on 8 February 2021. He opined that if the Applicant alleges that she received the documents in June 2022 she would be “lying.” He conceded under cross examination he was unaware of what letters were contained in the brown envelopes as it was sealed. He stated that he never saw the letter on page 25 Bundle A although it stated copy to principal.
45. He was also unaware that she had applied for a transfer in October 2020 for reasons of ill health (per page 35 Bundle A).
46. It is prudent that I should note at this point that the majority of cross examination put to Mjwara and Singh was out of their purview or knowledge and thus is not recorded herein.

SUMMARY OF CLOSING ARGUMENTS

The Applicant

47. Mr Dube submitted a summary of the Applicants medical issues.
    i. He submitted that the Applicant was diagnosed on 18 September 2020 with a new condition of body swelling which was “confidentially disclosed” in Dr Thusi’s consultation notes and read with the pathology report.
    ii. He submitted further that the two letters received by the Applicant were undated and unsigned and informed the Applicant of the outcomes of declined applications, except the first application which was partially accepted.
    iii. He stated that the Applicant applied for a transfer to Umgungundlovu district to be close to family in an effort to speed up her recovery. Her aim was to be assisted by family so that she could recover and to be close to psychiatric services as well.
    iv. He re-iterated evidence of the Applicant in not receiving feedback on her TIL applications in 2020 and 2021 and then discovering in 2022 that her salary had been deducted. He stated that the Respondent should have informed her timeously so that she could have returned to work within the 30 days so that she wont have to face the loss of salary. She would have returned to duty though she was ill too ill to work, and hope that her colleagues and supervisor would have alerted the Department to her plight. He stated that if she was instructed to return and failed the Respondent would have had recourse to disciplinary action against her.
    v. Mr Dube also submitted that Ms. Vezi contradicted herself by saying that the district direct delegated authority because she could not do everything herself, and that the delegated district director makes the decision to approve or reject. Thereafter Vezi stated that the Head of Department makes the final decision. He pointed out different places where the signatures of the designated officials were signed by different designees and thus it was questionable
    vi. He submitted that in terms of Section 55(a)(c)(d) of the Department of Basic Education – Republic of South Africa: Policy on the Organisation, roles and Responsibilities of Education Districts delegation of authority must be in writing to the delegate and the Respondent failed to prove that it had such a written authority. He noted that in Section 54 approval or rejection of TIL is not listed, however it does not automatically empower Directors to make delegation and that the policy document still directs that Head of Department must assign them in writing to District Directors.
    vii. He submitted further that “The questionable validity of outsourced Medical Assessment Reports is evident in the fact that a wrong diagnosis: Severe Reactive Depression, was assessed and an unreliable reason: No Specialist Involvement for the outcome was concluded for the period of 18 September 2020 – 15 December 2020.” The Applicant was certified ill for the period 18 September 2020 – 15 December 2020 by a registered Specialist Family Physician and was actually diagnosed with Swollen Body and Hypothyroidism.
    viii. The summary of the Health Risk managers recommendation on part F is missing and justifies why the Respondent failed to justify the HOD’s final decision.
    ix. He submitted that Ms Singh was asked if the debt recovery was held in abeyance in terms of the Debt Management Policy whilst the grievance process was still in process and Singh stated that she did not know that a grievance had been filed. He also noted that the letter regarding the debt was addressed to PO Box 170 and not to the Applicant’s address or school.
    x. Mjwara confirmed that he did not know the contents of the envelope that he handed to the Applicant on 8 February 2021. He also stated that she had notified him when she was ill and he approved her 3 months of leave because of the certificate attached.
    xi. Mr Dube’s analysis is part of the record and does not bear repeating. He asks that he Commissioner to determine whether the respondent complied with the provisions of PSCB Resolution 7 of 2000 as amended, read with the ELRC Resolution 7 of 2001 with regards to the handling of the applicant’s applications for TIL for the period from 23 July 2020 to 17 September 2020 and for the period from 18 September 2020 to 15 December 2020. Further whether the respondent should reimburse the applicant money that the respondent has been recovering monthly since 15 July 2022.

The Respondent

48. Mr Mkhanyawo submitted the following argument in closing:

i. The Applicant had exhausted her 36 days of sick leave and applied for TIL. Incapacity leave is granted conditionally at the employers discretion as provided for in the Leave Determination and PILIR.
ii. The health risk manager is an entity of multi-disciplinary medical experts and are contracted to the employer to provide advice on an application for TIL. THRM issues a report to the employer within a specified timeframe to assist the employer is making a final decision.
iii. The District Director hold the highest office and has the powers to delegate functions. Leave functions are dealt with at district level by HR personnel and the authority of the Assistant director as delegated by the director was confirmed by the Respondent as contained by the policy in respect of the organisation. It is demonstrated that the District Director was aware of the application by the Applicant as she had signed both Annexures A and B.

iv. The Applicants first application had been partially approved by THRM as the information that she submitted could not validate the full period she had applied for. The second application was fully declined due to lack of specialist intervention. PILIR prescribes that the employee must provide sufficient information to prove that he/she is unable to perform their work due to illness. The employee is afforded the opportunity to submit sufficient information including medical reports and blood tests to show his/her inability to work, and this opportunity is in line with Schedule 8 of the Labour Relations Act.
v. The Applicant was fully aware that there was a possibility that her application for TIL could be declined because on both Annexure A and B (which was filled out by the Applicant) it is stated that if the application is declined it would be converted to annual leave or LWP, the Respondent is of the view that the Applicant applied for TIL to intensify her request to be transferred to Umgungundlovu district for health reasons.
vi. Dr Thusi was recognized by THRM as a general practitioner. The fact that he was a specialist family physician did not justify his treatment of the Applicant as she had depressive disorder. Furthermore, Dr Thusi noted that she was admitted to Akeso Hospital but the dates of admission and proof thereof was not supplied by the Applicant in the application. Respondent also submitted that the dates in Annexure A and B did not correspond with the medical certificates and the Applicant could not explain why this was so.
vii. Respondent avers that the medical corticates issued by the medical practitioners are hearsay evidence and that the Applicant should have called the doctors to testify. Mr Mkhanyawo referenced the case of Matsekoleng v Shoprite Checkers [2013] 2 BLLR 130 (LAC) in this regard.
viii. Respondent is of the view that the Applicant did not manage her sick leave appropriate and in fact abused the sick leave. Mr Mkhanyawo averred that the trust relationship between the Applicant and the employer has broken and that the Respondent no longer trusts her. He referenced the case of Classic Number Trading 80 (Pty) Ltd t/a Nashua Tshwane v Shaik-Ahmed and Others (JR838/13) [2015] ZALCJHB 71 where the Court held that a 16 day period of absence by a supervisor showed indifference and that “it is unreasonable for an employer to keep an employee in its employ when he has little regard to its operational interest…. In this case illness or underlying condition did not overturn the dismissal.”
ix. The Applicant lied under oath that she had received two letters in June 2022. Mjwara had testified that he handed the letters to her on 8 February 2021 and the Applicant did not dispute this.
x. Respondent placed on record that during the break he had heard the Applicant being coached by Mr Dube. This was not allowed because the Applicant was still in the process of testifying in chief
xi. The Respondent is seeking the Council to determine that the decision to proceed with LWP was substantively fair and asks the Commission to dismiss the matter with no entitlement to relief.

ANALYSIS OF EVIDENCE AND ARGUMENT

49. I am tasked to interpret the provisions of the PSCBC Resolution 7/2000 and ELRC Resolution 7/2001 read with Policy and Procedure on Incapacity Leave And Ill-Health Retirement (PILIR).to gauge whether they were properly applied to the Applicant’s application for TIL.
50. Many arguments were raised by Mr Dube on behalf of the Applicant. He made lengthy argument ranging from whether or not the Respondent abided by the various collective agreements to whether or not the Respondents reasons to reject the TIL application were fair. I have fathomed that his essential argument is that the Respondent has not followed the prescripts of the aforementioned collective agreements in processing the TIL.
51. The Constitutional Court in CUSA v Tao Ying Industries and Others (2008) 29 ILJ 2461 (CC) at para 66:
    “A commissioner must, as the LRA requires, ‘deal with the substantial merits of the dispute’. This can only be done by ascertaining the real dispute between the parties. In deciding what the real dispute between the parties is, a commissioner is not necessarily bound by what the legal representatives say the dispute is. The labels that parties attach to a dispute cannot change its underlying nature. A commissioner is required to take all the facts into consideration including the description of the nature of the dispute, the outcome requested by the union and the evidence presented during the arbitration……The informal nature of the arbitration process permits a commissioner to determine what the real dispute between the parties is on a consideration of all the facts. The dispute between the parties may only emerge once all the evidence is in.”
52. The Applicant has not specifically mentioned which sections of the collective agreements should be interpreted, however, from the crux of the Applicant argument, it is clear that reference is being made to the sections relating to TIL. The PILIR Policy has also been referenced.
53. Although the Applicant requires me to interpret the PSCBC Resolution 7/2000, the ELRC Resolution 7/2001 supercedes the PSCBC Resolution in its applicability to educators. In any event. The ELRC Resolution 7/2001 acknowledges PSCBC Resolution 7/2000 and deals with TIL in Paragraph 9, where the said section almost mirrors that of Paragraph 7.5 of the said PSCBC Resolution.
54. The Applicant testified that she was treated for depression and was granted leave for a 3 month period between July and September 2020. At the end of that period, she started to have symptoms of body swelling and her treating doctor, Dr Pillay, referred her to Dr Thusi. Mr Dube referred to the report of Dr Thusi on pages 31 to 34 of Bundle A (the Applicant’s bundle.) These documents were filed by the Applicant in her second TIL claim. I note that Dr Thusi noted on the medical certificate (Page 30) the diagnosis of “medical condition.” The attached pathology record had a comment of “Mild Subclinical Hypothyroidism.” In paragraph 1.2 of the pre-arb minutes, the Applicant party recorded as a fact in dispute that the diagnosis indicated by THRM is contrary to the diagnosis made by the medical practitioner for the period 18 September to 15 December 2024.
55. The report from THRM appears on page 156 of Bundle B (Respondent;s bundle) and the said report notes Dr Thusi as a general practitioner and the diagnosis as Severe Reactive Depression. I gather that this is what Mr Dube meant when he said that THRM did not get the facts correct and that their noting of the diagnosis differs from what the Applicant saw Dr Thusi for, I refer to page 137 – 149 on Bundle B which is the Annexure B completed by Dr Thusi in respect of the period 18 September 2020 to 15 December 2020, and he answered the selected questions as follows:
56. He noted that he had been treating her for 5 years and that he first saw her in June 2020 her current condition relating to the incapacity. He diagnosed her with “Major Depressive Disorder”. We went so far as to say that her main problem over the years has been reactive depression. He noted that the Applicant had been admitted to Akeso hospital in Durban. This was untrue. She had visited Akeso Clinic in Pietermaritzburg for treatment and was admitted to Oatlands hospital and this occurred during her previous absence between July to September 2020. He recommended that she is prescribed anti-depressants.
57. The information in the same Annexure on page 115 onward, as completed by the Applicant is at odds with the rest of the form filled in by doctor Thusi. The Applicant, in the part that she completed, said she had symptoms of short breath in 2012 and that Dr Thusi had referred her to a cardiologist, Dr Patel. She stated that she had to have a procedure as she had been diagnosed with mitral stenosis. She also stated that she was seeing a cardiologist 3 times a month. At this arbitration the Applicant testified that she was referred to Dr Thusi for body swelling.
58. Mr Dube referred me to a letter on page 44 Bundle A, where he alleged that the letter states that the Applicant was referred by the psychiatrist to Dr Thusi due to body swelling. I am perplexed at this letter. It is dated 05/03/2021, a year after Dr Thusi completed the Annexure B form. The letter is not even written by Doctor B.J. Thusi who completed the form, but rather, it is written by Dr L. Thusi giving a second hand account of the Applicant’s visit to Dr B.J. Thusi. In the letter, Dr L. Thusi states that Dr B.J. consulted with the Applicant and recommended a leave of absence because she had presented with severe body swelling and was diagnosed with hypothyroidism. This information was never recorded by B.J. Thusi when he completed the Annexure B form. According to the author, the Applicant was due to be reviewed in November 2020 however Dr B. J. Thusi passed away. The Applicant / Union was not mindful that this information was not before THRM when they considered the Applicant’s application. This report appears to have been sought after the fact.
59. There is no report by Dr Patel filed with the application. There is no proof attached that she see the cardiologist 3 times per week as alleged. Her record of treatment simply does not match that of Dr Thusi’s. Considering that Dr Thusi issued a certificate for a 3 month period for his own diagnosis of Depression, it is untenable that it was not accompanied by a report from a psychiatrist.
60. On page 31 a report from the psychiatrist dated 14 March 2021 is attached. This report was also issued after the fact and therefore not attached to the application for TIL. I find that it is highly significant that the Applicant sought these two reports in March 2021, which coincides with the Respondent’s submission that she had received the letters informing her of the rejection of the applications by THRM in February 2021.
61. The role of the Health Risk Manager is defined in PILIR in clause 6.4 as follows:

6.4. The Health Risk Manager: The Health Risk Manager is an entity of independent multi-disciplinary medical experts, specializing in occupational medicine appointed by the DPSA and the National Treasury: Pensions Administration. The Health Risk Manager will assess and provide advice to the Employer in respect of an employee’s application for incapacity leave and ill-health retirement within specified timeframes. The systems and administrative capacity for handling the volume of forms, as well as the medical knowledge and experience to do incapacity leave and ill-health retirement assessments are the responsibility of the Health Risk Manager. The Health Risk Manager shall provide training to departments on PILIR. The Health Risk Manager shall provide regular reports to the dpsa, National Treasury: Pensions Administration, and the Employer . (my emphasis).

62. Thandile Health Risk Management conducts a peer review of the medical reports and certificates. A recommendation is made to the employer who may deviate therefrom but this is rare. Vezi testified the Respondents staff are not medical experts. It is apparent that the employer does not deviate from the recommendation of THRM on the basis that the employer is looking at the application from a purely administrative basis whilst THRM has reviewed the supporting medical records using a panel of doctors (peer review) and will therefore be in a better position to understand whether the reasons for absence were justified by the supporting reports from Doctors. Mr Dubes’ constant arguments were that the final decision must come from the HOD or its delegate. However, no explanation was proffered as to why the HOD would have deviated from THRM’s recommendation in this case.
63. The Respondent presented 3 witnesses who corroborated each other on material facts that were pertinent to the dispute. They came across as open and honest and I accept their testimony. The Applicant, although I did not find that she was outwardly untruthful, was however at times evasive and contradictory.
64. Ms. Vezi testified on the dates on which the applications were processed and when then Applicant had been advised of an outcome. This was corroborated by Singh. Mjwara corroborated the timeframe that both witnesses testified on in respect of the date on which he had fetched the letter. The Respondent provided copies of the district register and circuit register to prove the dates on which the letters were sent out to the Applicant. It is important to note that the Applicant never disputed that the Respondents witnesses had processed the respective applications in the timeframe that the witnesses alleged. The argument was that she was notified some 600 days later. It would certainly be difficult to challenge this evidence in light of the fact the dates received were stamped on the relevant documents, as well as the dates issued, further corroborated by the dates on the district and circuit registers.
65. The Applicant’s position this entire arbitration was that she only received the envelope from Mjwara on 21 June 2022. The Applicant did not give any reasons why Mjwara would possibly withhold this envelope from her from over a year as she had alleged. Mjwara’s evidence is consistent with the dates on which the letters were issued per the district register. Mr Dube questioned Ms Vezi at length regarding the fact that her letters were undated and she responded that the template did not have provision for a date, however the Respondent relied on the date on which it was recorded as issued on the register. This is evidenced by the template provided for in Annexure D of PILIR. Both she and Ms. Singh testified that the Applicant was telephoned on numerous occasions by the Respondent. The initial telephone call was to advise that the leave had not been approved and this was done on both occasions. Thereafter, they both testified that the Applicant had simply ignored their phonecalls. They both testified that the calls were made as they did not receive any response from the Applicant and that they had given her time beyond the dates on which the Applicant should have responded. Thus the reason why recovery only took place in July 2022. At no stage was it ever disputed by Mr Dube that the Respondent telephonically informed the Applicant about the rejection of her application, nor that they had made several unsuccessful attempts to telephone her thereafter.
66. The Applicant testified that she received this envelope on 21 June 2022 and because it was close to the school holiday she did not do anything about it. She was further shocked that her salary was deducted on 15 July 2022 in respect of the Respondent’s promised recovery of funds. Only when school reopened did she visit the district office with this concern. This version, in my view, holds no water. The Applicant did not state on which date school closed for the holiday. She also did not aver that the administrative arm of the Respondent closes during the school holiday because that would be simply untrue. If the Applicant’s version were to be believed, then upon opening the letter, her first line of action would have been to raise a concern with Mjwara and elicit information from him as to when he had received the letter or why she was only receiving this letter at that point. The obvious next step is that if she was truly unable to visit the district office, she would have immediately telephoned the HR department to report that she was only now receiving a letter that required compliance from her 1 year and 4 months ago. She also would have visited the district office without delay and by her own testimony, the school mid-year holiday was imminent, therefore it can be concluded that she had ample opportunity to visit the district office. However, the Applicant only visited the said office after the school holiday, coinciding with the fact that her salary had been deducted on 15 July 2022. The version of the Applicant only serves to strengthen the version of the Respondent that the Applicant had failed to respond to the Respondent’s repeated attempts to contact her until such time that the recovery took place. If all else failed, one would have expected that she would lodged a grievance against Mjwara for failing to deliver the letters to her timeously in light of the allegation by the employer that it was collected by Mjwara on 4 February 2021.
67. It is prudent to note at this that the Applicant did not appear at subsequent sittings. Some issues arose during the testimony of Vezi which was previously not put to the Applicant by the Respondent. Mr Dube was advised at that stage that the Applicant could be recalled to address the said evidence of the Respondent’s witness, however the onus is on the Applicant in this dispute to prove its position. The Applicant was not recalled at the close of the Respondents case. Issues also arose during the testimony of Mjwara and notable the production of the register where he had signed for receipt of the envelopes on 4 February 2021 and alleged that he had handed it to her on 8 February 2021. This information was never put to the Applicant and Mr Dube did not recall her to have the versions out to her. It therefore follows that the testimony of Vezi and Mjwara, insofar as the aspects not put to the Applicant, are accepted as being unchallenged by the Applicant,
68. It is trite that the onus in this type of dispute lies on the Applicant to prove that the Respondent transgressed the policy. The underlying concept in both resolutions and PILIR is that incapacity leave is leave that is granted over and above the 36 days of sick leave afforded at its most basic origin in the Basic Conditions of Employment Act. Most importantly, this granting of TIL is NOT A RIGHT. The granting of this leave is entirely at the DISCRETION of the employer. The granting of leave to allow the investigation of the application is CONDITIONAL and the employee who applies for TIL is made aware upon the application form that the conditional granting of the leave is subject to the said leave being approved,
69. The onus is on the Applicant to show that he/she is too ill; to work. It is not the responsibility of the Respondent to inform the Applicant that he/she must submit further information to comply with the requirements. There is nothing In both resolutions and PILIR that places this obligation on the employer,
70. In the case of PSA obo Serame and Department of Social Development Gauteng PSCB 98-17-18 (Arbitration Award), my learned colleague Commissioner Anadh Dorasamy had the following to say:

“An employee seeking additional sick leave in terms of PILIR has conditionally been paid a salary while their application for additional leave is considered. This consideration should be over within 30 days. However, if the period the employer takes to decide the application exceeds the 30 days set out in PILIR, I do not see how the conditionality of payments to an employee, subject to a medical assessment, hardens into an entitlement after the 30 day investigation period lapses. Nor, in light of clause 7.2.2.2, 7.3.3.2 and note 4 of PILIR, should a reasonable employee applying for additional leave assume that, should a medical assessment go against them, even if delayed, they are entitled to be paid for their absence from work. It seems to me that, if the underlying medical condition which promoted an employee to seek additional sick leave, is assessed not to have warranted such leave, this fact must determine what happens to any payments they received while applying and not the employer’s delay in attending to the application”

71. In terms of Regulation 13 of the Regulations Regarding the Terms and Conditions Of Employment Of Education the employer is entitled to recover any monies that were wrongly paid to the employee.
72. In respect of the second application, I am unable to find that the Respondent has not followed the process prescribed by the Collective Agreements. The Union has been advising the Applicant since the inception when she filed a grievance. Had the applications submitted by the Applicant been thoroughly scrutinized by the Union, it would have reached a realization that her applications were denied for want of relevant or appropriate information and not because the Respondent failed to follow the prescripts of the Collective Agreements / Resolutions.
73. In terms of the first application, the Respondent did not dispute that it had issued two letters. I accept the evidence of Mjwara that he had submitted the envelope to the Applicant on 8 February 2021. However what this means is that the first period had a return date of 23 November 2020. and this date had already passed on 8 February 2021. This is prima facie unfair to the Applicant, however I have noted the unchallenged testimony of 2 witnesses that the Applicant was advised of the outcome telephonically and that she failed to answer any further calls from the HR Department. Even in February 2021. The Applicant had ample opportunity to file a grievance because, as the witnesses testified, they afforded the Applicant more time than the defined return dates, and even if we believed the version of the Applicant, she still had an opportunity to dispute the findings of the employer on 22 June 2022 when she purportedly received the letters because the employer only began the recovery process on 15 July 2022. Nothing turned on the testimony of the Applicant that says the Respondent failed to follow the processes in the said PSCBC and ELRC Resolutions read with PILIR. The only proposition was that she only received the envelope in June 2022. The arguments submitted by Mr Dube were mainly that there was no letter delegating Vezi to deal with the applications, that different delegated officials signed various parts of the form, and the like. However, there was no explanation how and why those supposed transgressions had led to the Applicant being prejudiced. Eg if the Respondent transgressed the policy by the HOD not issuing a letter of authority, in what way did this transgression prejudice the Applicant?
74. The Applicant testified that had she been timeously informed that her application had been declined due to lack of sufficient medical information, she would have submitted further reports to substantiate her claim. She testified that the Respondent had acted unfairly because they had denied her this opportunity. I note that in respect of PILIR, submitting further information is not an option in a declined application. TIL is covered in clause 7.2 of PILIR. In terms of clause 7.2.10.:
    If the Employer –
    7.2.10.1. approves the temporary incapacity leave granted conditionally, such leave must be converted into temporary incapacity leave; or
    7.2.10.2. refuses the temporary incapacity leave granted conditionally, s/he must notify the employee in writing- (a) of the refusal; (b) of the reasons for the refusal; (c) that if s/he is not satisfied with the Employer’s decision, that s/he may lodge a grievance as contemplated in paragraph 13 of this policy; and PILIR Policy August 2021 Final 12 (d) 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 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. (my emphasis).
75. This Clause amplifies clauses 9.1 to 9.6 of ELRC Resolution 7 of 2001.
76. It is thus my finding that the Applicant did not discharge the onus to prove that the Respondent transgressed the applicable clauses in the ELRC Resolution 7 of 2001 read together with PILIR Policy. AWARD
77. The application is dismissed.
78. The Applicant is not entitled to relief.

C. Venketiah
Arbitrator 10 December 2024
ELRC 41-24/25KZN