IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION HEARING HELD AT THE PROVINCIAL OFFICES OF THE RESPONDENT, LIMPOPO PROVINCE

Case Number: ELRC401-24/25LP
Arbitrator: Moraka Abel Makgaa
Date: 25October 2024

In the matter between: –

Saims Zikhata Nxumalo Applicant

And

Education Department of Limpopo Respondent

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION
1 The matter was initially heard on 19 September 2024 and concluded on 10 October 2024. The venue of the arbitration hearing was at Corner Hospital and Van Rensburg Streets, in Polokwane, Limpopo Province.
2 The applicant was always present and represented Mr Makhensa Maphophe of Maphophe Attorneys whereas the respondent was represented by Ms Portia Modipa employed by the respondent as the Assistant Director: Grievances and Disputes Resolution. Mr Maphophe was accompanied by Hanyani Mabobo, a Candidate Attorney from Maphophe Attorneys.
3 The proceedings were conducted in English, and digitally recorded.

THE ISSUE IN DISPUTE
4 Whether the respondent’s decision to implement Leave Without Pay against the applicant for the periods 19 September 2023 to 29 September 2023 and 13 December 2023 to 14 December 2023 constituted an unfair labour practice for the purposes of section 186(2) of the Labour Relations Act 66 of 1995. If yes, I am required to determine the appropriate remedy.

BACKGROUND TO THE DISPUTE
5 The material facts in this matter are either common cause or were not disputed by the applicant and/or the respondent during the arbitration hearing. The factual background has been summarised from both the oral and documentary evidence of the parties.

6 The applicant was employed by the respondent as a Post Level 1 educator, effective from 19 March 2019. He is stationed at Hipambukile Primary School, which is one of the schools in the Mopani District. On 17 April 2024 the applicant was issued with a letter from the Director of Mopani District in terms of which he was informed that Leave Without Pay have been implemented against him for non-compliance with the prescribed leave measures in respect of the following periods: 19/09/2023 to 22/09/2023 (04); 26/09/2023 to 29/09/2023 (4); and 13/12/2023 to 14/12/2023 (02).

7 On 02 May 2024 the Regional Secretary of the South African Democratic Teachers Union (“SADTU”), wrote a letter to the District Director of Mopani complaining about the respondent’s decision to regard the ten (10) in respect of the periods cited above, as an unpaid leave. On 08 May 2024 the District Director responded to SADTU’s letter in terms of which SADTU was informed that the respondent was not inclined to reverse its decision to implement Leave Without Pay against the applicant. Firstly, it was stated that the decision was occasioned by the applicant’s failure or refusal to complete leave forms in respect of the 10 days in dispute. Secondly, it was stated that the medical certificate which was submitted by the applicant did not cover 22 September 2024. It was further stated that the medical certificate was issued by a registered Counsellor as opposed to being issued by a medical practitioner.

8 On 16 May 2024, Maphophe Attorneys wrote a letter of demand to Hipambukile Primary School, Circuit Manager: Klein Letaba Circuit and MEC for the Limpopo Department of Education concerning the respondent’s decision to implement leave without pay against the applicant. The first letter was written on on 16 May 2024 whereas the second one was written on 24 May 2024. These letters were apparently never responded to.

9 On 24 May 2024 the applicant’s Attorneys of record referred a dispute of unfair labour practice to the CCMA for conciliation, under Case Number LP523-24. The same dispute was latter referred to the ELRC, and was unsuccessfully conciliated on 02 August 2024. The pre-arbitration minute was drawn up, and signed by the parties. The following were agreed to be issues in dispute: whether the applicant had accrued sick leave days on 30 September 2023; and whether the applicant was absent on 13 December 2023 and 14 December 2014.

10 The matter was ultimately set down for arbitration on 19 September 2024, and it served before me. The parties agreed to use a joint evidence bundle prepared by the respondent . It was also agreed that the few documents which were in possession of the respondent should be included in the joint evidence bundle. The joint evidence bundle was made up of 61 pages.

SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENTS
11 Saims Zikhata Nxumalo, who is the applicant in this matter, testified in support of his case. He testified under oath. His evidence can be summarized as follows. During September 2023 he took sick leave for eight (8) days. Upon arrival from his sick leave, he gave the school principal the relevant medical certificate. The principal instructed him to complete leave forms relating to incapacity leave. He refused on the basis that his salary advices for April 2024 and May 2024 show that he still had nine (9) days of normal sick leave. After receipt of the June 2024 salary advice, he realized that the nine (9) days of normal sick leave were reduced to six (6) days even though he had never taken any sick leave after the September 2023 sick leave.

12 It was discovered that the mistake made by the school management was to include the leave days taken during 2021 when calculating the leave days taken and those remaining for purposes of the 2022 to 2024 three-year sick leave cycle. He was informed that a new recalculation had been made, excluding the year 2021. What worried him was that the same outcome that he had exhausted his normal sick leave days was still arrived at.

13 He could not remember the number of sick leave days that he may have taken before September 2023 because of the fact that the record of leaves taken is being kept by those in authority at school. After receipt of the letter concerning the respondent’s decision to implement Leave Without Pay against him, he went to his supervisor to discuss the matter. He ultimately decided to approach his Attorneys of record for assistance. His Attorneys wrote a letter to the respondent demanding that the decision to implement Leave Without Pay should be reversed because it constituted an unfair labour practice.

14 In as far as procedural unfairness is concerned, he testified that he was never called to a meeting or given the opportunity to present his side of the story on the issue of Leave Without Pay. The respondent’s letter of 17 April 2024 was meant to inform him about the respondent’s decision on implementation of Leave Without Pay.
15 Under cross examination, he stuck to his guns insofar as the allegations of procedural unfairness are concerned. He further testified that the leave days written on the report on pages 49 and 50 of the joint evidence bundle was not a true reflection of the leave days that he had taken during 2022 and 2023. He disagreed with the respondent’s version that the letter of 17 April 2024 was a notification that Leave Without Pay was to be implemented in respect of the days in dispute.

16 He conceded that he did not have any proof to support his version that the principal’s report was not a true reflection of the number of sick leave days that he took during 2022 and 2023. In response to the disclaimer at the bottom of the salary advice where it is stated that leave credits displayed on the salary advice are subject to auditing on the basis that all leave taken may not have been processed, and for those reasons the correctness of the leave credits appearing on the salary advice should be certified by the relevant Human Resources section.He testified that he does not think that auditing and capturing of leave days should take about six (6) months to be completed.

17 In response to the proposition that for one to know the number of leave days that had been taken reliance should be based on the leave register. He testified that he had no idea on what is happening with the leave register because it is control by the very same office he is complaining about.

SURVEY OF THE RESPONDANT’S EVIDENCE AND ARGUMENTS
18 Dzunani Idah Mthombeni testified under oath, and her testimony can be summarised as follows. She is the Principal of Hipambukile Primary School. Her evidence as to why Leave Without Pay was implemented against the applicant in respect of the 10 days in dispute was based on the two reports which she compiled and submitted to the Circuit Manager on 01 December 2023 and 20 March 2024 respectively.

19 The procedure as regards sick leave, is that an educator should complete and submit the sick leave forms either during the period of the sick leave or immediately upon return to work. If an educator who has not completed and submitted sick leave forms during the period of the sick leave or does not come to the office to request leave forms, the educator responsible for management of the leave register, who is the Deputy Principal, should issue out the sick leave forms to such an educator.

20 In the present case, the applicant did not comply with the procedure outlined in the leave management policy in that he refused to complete and submit leave forms for the period 19 September 2023 until 29 September 2023. According to the school’s leave register, the applicant had, between the period 26 January 2022 and 29 September 2023, taken thirty-eight (38) normal sick leave days, which meant that he had at that time exhausted his thirty-six (36) normal sick leave days by two (2) days.

21 This is the reason why the applicant was told that he should complete and submit leave forms for normal sick leave in respect of the six (6) and leave forms for temporary incapacity in respect of the remaining two (2) days. This explanation was given, on several occasions, to the applicant in the presence of his union representative. The applicant refused saying that his salary advice shows that he still had nine (9) leave days for normal sick leave.
22 It was further testified that the applicant was advised by his union not to sign the leave forms until the union advised him to do so. She then decided to refer the matter to the Office of the Circuit Manager for further investigation. A similar report was submitted to the Office of the Circuit Manager for further investigation. The only difference is that in the report of 20 March 2024, it was recommended that Leave Without Pay should be implemented in respect of the affected days.

23 The procedure to be followed in respect of leave for urgent private matters is that the educator should ordinarily apply in advance and wait for an approval. In the event of this procedure not being followed, the educator concerned must inform his or her supervisor about reasons for his or her absence, and upon return to work leave forms must be completed and submitted. The leave form must be accompanied by a letter explaining the urgent private matter in question. It was further testified that the correct procedure was also not followed in respect of the applicant’s absence for the period 13 December 2023 until 14 December 2023.

24 On 13 May 2024 the applicant completed and submitted the normal sick leave form in respect of the eight (8) days taken during the period 19 September 2023 until 29 September 2023, and another leave form for urgent private matters relating to the two (2) days taken during 13 December 2023 to 14 December 2023. This was done after receipt of the letter of 17 April 2024. She held a meeting with the Circuit Manager, the applicant and his union representative where it was agreed that the applicant would complete and submit the necessary leave forms.
25 She disagreed with the applicant’s version that he had no access to the school’s leave register contending that it is the responsibility of all educators to submit their leave forms and to sign in the leave register in connection with such a submission. She further testified that it is also the educator’s responsibility to go to the relevant supervisor and enquire about leave days taken as well as the remaining leave days because such information could be easily forgotten by the educators.

26 Under cross examination, she insisted that the applicant was given sick leave forms for normal sick leave in respect of the six (6) days and another leave form for the two (2) days in excess of the 36 days for the normal sick leave for the 2022 to 2024 leave cycle. She stuck to her guns on the question that the applicant had at that time exhausted his normal sick leave days by two (2) days. She disagreed with the proposition that the leave register in the joint evidence bundle was not a true reflection of the leave days taken by the applicant because of the fact that during evidence-in-chief she made some corrections on some of the numbers relating to the leave days taken and those remaining.

27 She conceded that, at first, the school had indeed included leave days taken during 2021 when determining whether the applicant had exhausted his normal sick leave days. This initial calculation showed that the applicant had exhausted his normal sick leave days by eight (8) days, but after making the necessary correction the result was that the applicant exhausted his normal sick leave days by two (2) days.

28 Sam Nyiko Sono testified under oath, and his testimony can be summarised as follows. He is the Deputy Director responsible for Corporate Services, which is made up of several Sub-units, including Conditions of Service. He corroborated the evidence of Ms Mthombeni, especially as regards the procedure which must be followed in the application of leave of absence and reason why leave without pay had to be implemented against the applicant. Reference was made to the District Director’s letter which was issued to the applicant on 17 April 2024 and the one which was written to SADTU Regional Secretary on 08 May 2024.

29 As to the controversy surrounding the issue of the sick leave credits in the applicant’s salary advices, he also read into record the disclaimer at the bottom of the salary advices, and further corroborated the evidence of the Principal concerning the context within which the sick leave days appearing on an employee’s salary advice should be understood. He further added that capturing of leave days which appear on employees’ salary advices is done at the national level and not at the district level.

30 He further testified about copies of PERSAL print outs which appear on pages 59 to 61 of the joint evidence bundle, which show that the applicant had, between 26 January 2022 and 29 September 2023, utilized forty-one (41) normal sick leave days, which means that he had, as at the time of taking the leave days in dispute, exhausted his normal sick leave days by five (5) days.

31 Under cross examination, he testified that when the leave without pay was implemented the applicant’s leave forms had not yet been submitted to the District Office. He, just like Ms Mthombeni, testified that it would not have been advisable for the Department to rush to prefer charges of misconduct against the applicant on the basis that he was absent from work on account of ill-health.
32 As to why the leave without pay had also included weekends, he testified that according to policy weekends and public holidays are included for purposes of calculating the amount to be deducted.

ANAYSIS OF EVIDENCE AND ARGUMENTS
33 It is settled law that in an unfair labour practice dispute the employee bears the onus to show that the employer’s conduct was unfair, and this must be done by a preponderance of the evidence. It is perhaps necessary for one to, first, explain the real reason as to why the applicant’s absence from work was regarded as unpaid leave, especially in the light of the approach which was adopted by the applicant, the applicant’s union and his legal representative.

34 Besides reliance on the unfair labour practice provisions of the Constitution of South Africa, 1996, and the Labour Relations Act 66 of 1995, the applicant’s legal representative’s letter of demand and the applicant’s closing arguments made reference to the provisions of section 34 of the Basic Conditions of Employment Act 75 of 1997 (“BCEA”), especially those dealing with circumstances under which a deduction may be made from an employee’s remuneration, as well as the complaint that the applicant’s procedural fairness rights had been contravened.

35 I am of the view that the fact that the applicant was paid less than what he would ordinarily be paid at the end of the month does not necessarily mean that a deduction was made from his remuneration for purposes of section 34 of the BCEA. In the present case, the reason why the applicant got a lesser salary on 22 May 2024 was because he was simply paid for work done and not paid for work not done. It essentially means section 34 of the BCEA cannot be relied on for purposes proving the existence of unfairness as regards the manner in which unpaid leave was implemented against the applicant.
36 Section 22(5) (a) of the BCEA provides that an employer must, subject to section 23, pay an employee for a day’s sick leave the wage the employee would ordinarily have received for work on that day. It is also important to emphasize the fact that under the common law, statute law and the employment contract an employee is obliged to have actually worked in order to be entitled to a remuneration.

37 Chapter J of the Personnel Administration Measures PAM, 12 February 2016 (“PAM”) deals with leave measures applicable to both school-based and office-based educators. The different types of leaves regulated therein include normal sick leave and special leave for urgent private affairs. Paragraph H.5.2.4 of PAM provides as follows:
“If an educator is unable to report for duty due to sudden illness, he/she must immediately notify his/her immediate supervisor of her or his inability to report for duty. An educator must submit an application for sick leave personally or through a relative, fellow educator within 5 working days after the first day of absence”.
38 Paragraph 7.1.2 of the Policy and Procedure on Incapacity and Ill-Health Retirement (“PILIR”) provides that “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 the PILIR in respect of each occasion”. Paragraph 7.1.8. provides that an employee who wishes to submit an application form for temporary incapacity leave must do so personally or through a relative, fellow employee or friend within 5 working days after the first day of absence.

39 In the instant case, the applicant’s salary was withheld because of the fact that his refusal to complete and submit leave forms for such an extended period of time has effectively rendered the applicant’s absence from work to constitute an unauthorised absence. The respondent was as such entitled to invoke the unpaid leave remedies available to it. In other words, the unpaid leave which the applicant is aggrieved about had not been implemented because of the correctness or otherwise of the question whether the applicant had indeed exhausted his normal sick leave days or on the question whether the applicant was able to furnish any valid reasons for being absent from work during the period in dispute. The real reason for subjecting the days in dispute to the consequences of an unpaid leave was, as stated at paragraph 3 of the letter of 17 April 2024, because of the applicant’s non-compliance with the prescribed leave measures.

40 According to the parties’ signed pre-arbitration minute, the following had been identified as the issues in dispute: whether the applicant had accrued sick leave days on 30 September 2023; and whether the applicant was absent on 13 December 2023 and 14 December 2014. In the light of the findings made above, I do not think it is necessary for me to deal with these two (2) issues in any greater detail except to indicate that the applicant’s reliance on the leave credits which are reflected on his salary advices was completely misguided and ill-fated for the reasons given by the respondent’s witnesses. In truth, the disclaimer at the bottom of the applicant’s salary advices is simple and straight forward. The net effect of the disclaimer is to the effect that the information on a salary advice may not necessarily be regarded as a true reflection of the actual leave credits available to an educator.

41 I am inclined to accept the respondent’s version that the most reliable record to be relied on for purposes of determining the number of leave days taken and those remaining for any employee of the respondent, including the applicant, is the leave register and any other relevant records which are managed and kept at the school.

42 Besides casting generalized aspersions on the leave register and the reports which were compiled and submitted to the Circuit Manager by the Principal on the applicant’s refusal to complete and submit leave forms, the applicant and his legal representative had not been able to point out any specific date(s) either in the Principal’s reports, the leave register or on the PERSAL print outs on pages 58 to 61 of the joint evidence bundle, or to produce any credible evidence sought to proveor suggest that the applicant was in fact not absent from work on such a date or dates.

43 Turning to the challenge on procedural fairness, it appears to me that the applicant was the one who may have flouted the applicable procedures in this matter. Firstly, it has not been suggested, at least by or on behalf of the applicant, that the applicant was unable to report for duty due to sudden sickness. Secondly, it is not clear as to why the applicant’s immediate supervisor could not be immediately notified about the applicant’s inability to report for duty. Thirdly, it is not clear as to why an application for sick leave could not be submitted, personally or through a relative, fellow educator within 5 working days after the first day of the applicant’s absence.

44 Chapter G of PAM provides for a procedure to be followed and time frames that should be adhered to if a grievant wishes to lodge a grievance with the head of the school or the grievant’s supervisor, the Circuit Manager, District Director and ultimately the Head of Department or his or her delegate. The only evidence before me which suggests that the grievance procedure may have been invoked is the fact that on 02 May 2024, SADTU is said to have written a letter to the District Director complaining about the respondent’s decision to implement leave without pay against the applicant. The first problem is that such an intervention was put in motion way outside of the 90 calendar days after occurrence of the grievance. Secondly, if the evidence of Ms Mthombeni is anything to go by, it was SADTU which had, in the first instance, given the applicant what I understand to have been an extraordinarily reckless advice, which was that the applicant should not sign any leave forms until he was told by the union to do so. The applicant was effectively rendered to have been absent from work without leave and/or permission of the employer, and continued to be as such for a period of almost eight (8) months.

45 Despite being confronted with the undisputed evidence of Ms Mthombeni, there was no explanation, during the arbitration hearing, as to why the applicant’s immediate supervisor had not been immediately notified about the applicant’s inability to report for duty. There was also no explanation, both before and during the arbitration hearing, as to why an application for sick leave could not be brought within the prescribed 5 working days after the first day of the applicant’s absence.

46 There was also no evidence proving or suggesting that the applicant had, immediately after reporting for duty, completed and submitted leave forms for normal sick leave, and that the leave forms which were signed on 13 May 2024 served as a re-submission of the original leave forms.
47 I am mindful of the applicant’s version which sought to suggest that the problem was caused by the fact that the applicant was compelled to apply for temporary incapacity leave, and that the discussions and differences between the senior management of the school (i.e the Principal and the Deputy Principal) were solely about temporary incapacity leave, much to the exclusion of an application for normal sick leave. I am not inclined to accept the applicant’s version on these questions because it is simply illogical and without any factual foundation. It is abundantly clear from the objective facts in this matter, that the principal’s position had always been that the applicant should complete normal sick leave forms in respect of the six (6) days and temporary incapacity in respect of the remaining two (2) days. Ms Mthombeni came across as an impressive witness, who is highly knowledgeable and full of clarity. Suggesting that she never wanted the applicant to complete normal sick leave forms and that she compelled the applicant to complete and submit leave forms for temporary incapacity in respect of all the eight (8) working days at issue cannot be countenanced.

48 I am of the view that there is no merit in the applicant’s complaint that he was not given a fair hearing or the opportunity to state his side of the story before the decision which was communicated to him in a letter of 17 April 2024 could be taken. Notwithstanding the fact that the applicant had more than seven (7) months within which he could have complied with a legally binding policy, the relief sought by the applicant suggests that he had always wanted and still want to be paid salary for the days which had, because of his conduct, become an unauthorised absence. It could have been different if the applicant was saying that he should have been given the opportunity to make representations as to how and when should the “leave without pay recovery” be implemented.
49 It is my finding that the respondent’s decision to implement unpaid leave against the applicant for the period 19 September 2023 to 29 September 2023, and 13 December 2023 to 14 December 2024 was both procedurally and substantively fair.

AWARD
50 It is my finding that the applicant has failed to discharge the onus of proving that the respondent has committed an unfair labour practice within the contemplation of section 186(2) of the LRA.
51 The applicant’s claim of unfair labour practice in terms of section 186(2) of the LRA is hereby dismissed.
DATED AND SIGNED AT LEPHALALE ON THIS 25th DAY OF OCTOBER 2024.

MORAKA ABEL MAKGAA
(ELRC PANELIST)