3 March 2023 – ELRC 46-22-23 KZN

ARBITRATION AWARD

Arbitrator: Mr. Anand Dorasamy

Date of Award: 02 March 2023
In the ARBITRATION between:
SADTU O B O CHARMMONEY CHARMAINE
(Union / Applicant)
and
DEPARTMENT OF EDUCATION-KZN
Respondent)
Union/Applicant’s representative: MR SIYANDA MTHIMKHULU
Union/Applicant’s address:
Telephone: 082 731 8759

Respondent’s representative: Mr ITUMELENG MAKHOOE
Telephone 082 731 8759

DETAILS OF HEARING AND REPRESENTATION

1. This was a Zoom hearing in Attorney Anand Dorasamy’s boardroom in Durban. The referral relates to incapacity leave for 28 days.

ISSUES TO BE DECIDED

2. I am to decide on the manner that this matter be finalised.

BACKGROUND TO THE ISSUE:

3. This matter was scheduled for Zoom Arbitration hearing on the 26 January 2023. The parties proposed that the matter be done by written submissions as follows:
3.1. The applicant’s representative will provide the respondent with its bundle of documents on the 31 January 23;
3.2. The respondent will provide the applicant with its bundle of documents on the 2 February 23;
3.3. The applicant will provide its written founding submission in the WORD format on or before the 9 February 23;
3.4. The respondent will provide its written answering submission in the WORD format on or before the 16 February 23;
3.5. The applicant will provide its written responding submission in the WORD format on or before the 23 February 23;
3.6. The award will be rendered thereafter.

APPLICANT’S FOUNDING SUBMISSION
4. The educator in question (the applicant) has served the ungrateful department of education for full 34 years, without criminal conviction within and outside the school premises. The gruesome act of the department not to grant the educator leaves as it is the prerogative of the South African constitution covered under the abstract labelled as Basic Conditions of Employment Act (No. 75 of 1997) and it is an unfair labour practice as guided by Labour Relations Act (No. 66 of 1995).
5. I refer the act as unreasonable taking into cognisance that all the documents were filled and signed accompanied by the relevant supporting documents. The bureaucratic system is used is used to supress their employees is unfair and uncalled for, the biggest mistake and mess started when the department decided to outsource critical duties people or a company without proper expertise to perform the tasks. Thandile was responsible for all leave medical assessment failing to consider the person victimized challenges by then.
6. The applicant has been through a lot as the result of taking non-stop leaves, she lost the husband in 2020 and that’s when depression stroked her. In the midst of that loss her father-in-law passed away which added fuel to the fire this proves the severe ness of the matter in question. Moreover, the bunch of men break-in her house stole everything and the car, case was opened this preamble lubricate the intended relief sorts.
7. The educator submitted all leave forms, annexures with medical certificates accompanied by medical
reports thoroughly composed by medical doctors and psychiatrists. The bundle shared with the respondent is evident enough to scrap their attempts of leave without pay to Dr Chamane Pramonney.

8. Matter to be decided by the commissioner;
• The commissioner to decide whether or not there was an unfair labour practice.
On a relief;
• The applicant be given leaves with full benefit.
• The department not to implement leave without pay considering all the facts presented above.

RESPONDENT’S ANSWERING SUBMISSION
9. INTRODUCTION
This is an unfair labour practice dispute. The Applicant bears the onus of proof. The Respondent has a duty to rebut. The Applicant’s submission are made in general. The Respondent’s submission will take the format of the Applicant’s founding, however will be more elaborate so as to respond to the applications for incapacity leave.
SUBMISSIONS
10. There is a massive difference between ordinary sick leave and incapacity leave. While the former is an entitlement in terms of the labour laws, the latter is a privilege granted on discretion of the employer. A decision to grant the latter is based on the medical expert opinion, otherwise the decision may be challenged on arbitrary grounds. The Applicant treated an application for temporary incapacity leave as an extension of the ordinary sick leave.
11. All applications for temporary incapacity leave are made with a special form (called Annexure A) with supporting documents. See page 11 of the Respondent’s bundle. On the first page of the annexure under paragraph 4, the form reads … Please note that if this application is declined based upon the outcome of the investigation, the period of temporary incapacity leave shall be converted either to annual leave or unpaid leave. Any potential applicant is sensitised to a possible adverse outcome.
12. Furthermore most employees like applicants, take for granted that any note from the medical professional is sufficient. The Respondent’s medical experts however, invariably furnish reasons for the decline of the applications. The Applicant was furnished with reasons for the decline of her applications for TIL.
13. The policy is clear, TIL must be applied for in advance, unless the conditions make it impossible. The application was referred to the Respondent’s health experts. The Respondent submits that communication was made to the Applicant in terms of which she was advised of the outcome, reasons and options available to her. See page 99 & 100 of the Respondent’s bundle. The Applicant exercised her choice by lodging a grievance. A grievance was dismissed with reasons furnished. See page 101 to 103 of the same bundle. You are also referred to page 164 & 165 thereof.
14. The Respondent is organization that deals with education and related matters. The Applicant’s complaint that the department outsourced critical duties (apparently decline or grant leave applications) is misguided. The Respondent has a prerogative to grant or decline the leave, but it bases its discretion on the medical assessment, otherwise its decision could be challenged as arbitrary. The Respondent is organization made of educationists as opposed to doctors. If the Respondent was Department of Health, the argument could warrant some entertainment, but still fall short of persuasion. Refer to the following paragraph for the argument.
15. It is beyond the competency of the council to decide on the validity or otherwise of the existing policy when it comes to application for incapacity. The Respondent is Department of Education. It bases its medical related decisions on the medical expert opinion. SADTU belongs to the collective bargaining unit at the level of bargaining council under the auspices of ELRC. If it not happy with the Department’s outsourcing of this function, the point of departure must be to revoke the policy. The Applicant cannot ask you to replace protocols that serve all employees within the sector.
16. Invariably employees go through a lot. Some go through more than what the Applicant shared. Although I symphasise with the Applicant, policy applies, not my feelings. It is a policy that declines their applications, of course informed by the medical assessments.
17. It is in the light of the afore-going that the application must be dismissed.
APPLICANT’S REPLYING SUBMISSION
18. The applicant proposed that she be given an opportunity to supplement her original submission that
was submitted initially to the employer.
NB THE APPLICANT MAY DO SO BUT THE AWARD IN THIS MATTER WILL BE RENDERED

SURVEY OF EVIDENCE AND ARGUMENT
19. The applicant had applied for temporary incapacity leave and her applications were declined and the respondent embarked on a process to recover the monies paid to the applicant.
20. The respondent contends that it had correctly applied the Resolution and that the applicant’s dispute be dismissed.
21. I have noted the case reference by the respondent and will deal with it in my analysis of the evidence and arguments below.

ANALYSIS OF EVIDENCE AND ARGUMENT
22. In order to remain within the scope of section 138 (1) of the Labour Relations Act the relevant
provision of the applicable resolutions have been read with the applicable provisions relating to the
terms and conditions of employment of employee by the employer. Further the previous and current
decisions in respect of temporary incapacity leave have been taken into account in arriving at my
decision.
23. The whole question of temporary incapacity leave and the application thereof was determined
by Judge Whitcher and delivered on the 23 November 2016. This judgment and its implications will be
elaborated below after some pertinent judgments are explored.
24. In terms of decision in Public Servants Association O B O Liebenberg v Department of Defence
and others (2013) 22LC 4.2.1 the issue of the jurisdiction of councils to arbitrate disputes referred under section 24 of the LRA has been settled. The Councils are now vested with the jurisdiction to determine the application of collective agreements.
25. The POPCRU and L E E Mbongwa v The Department of Correctional Services and other delivered
by Judge Whitcher on the 23 November 2016 has provided new direction in dealing with temporary
incapacity leave. The following are recorded from the judgment and where necessary the applicant’s
submission are incorporated in the finding:
“WHITCHER J
[1]. Clause 3.1 of the respondent’s Policy and Procedure on Incapacity Leave and III-Health Retirement
Policy (PILIR) provides that if an employee has exhausted his or her normal sick leave of 36 working
days in a sick leave cycle of 3 years, the respondent, may at its discretion, grant temporary incapacity
leave (TIL). The PILIR policy of 2005 is additionally a ministerial determination determined in terms of
section 3 (3) (c) of the Public Service Act of 1994. It amplifies a collective agreement, Resolution 7 of
2000, concluded in the Public Service Bargaining Council.
[2] Clause 7.1.1 of PILIR provides that incapacity leave is granted conditionally at the employer’s discretion.
[3] Clause 7.3.3 provides that the employer must within 5 working days from receipt of the written
application for incapacity leave conditionally grant a maximum of 30 consecutive working days
temporary incapacity leave with full pay subject to the outcome of its investigation.
[4] Clause 7.3.5 provides that the employer must within 30 working days after receipt of the application
approve or refuse temporary incapacity leave granted conditionally on conditions that the employer
may determine.
[5] Clause 7.3.5 provides further that if the employer (i) approves the temporary incapacity leave granted
conditionally, such leave must be converted into temporary incapacity leave; or if the employer (ii)
refuses the temporary incapacity leave granted conditionally, the employer must notify the employee
in writing of the refusal, the reasons thereof, that the employee has the right to lodge a grievance
against such refusal.
[6] The first page of the application forms contains a number of warning notes to the applicant.
[7] Note 4 warns that the application for temporary incapacity leave is subjected to an investigation and
in light hereof, the employer shall grant temporary incapacity leave conditionally for a maximum
period of 30 working days with full pay subject to the outcome of the investigation.
[8] Note 5 further cautions the applicant that if the application is declined based upon the outcome of the
investigation the period of temporary incapacity leave shall be converted to either annual leave or
unpaid leave.
[9] Section 38 (1) of the Public Service Act, 1994 provides that if a state employee has, in respect of his
salary, including any portion of any allowance or other remuneration or any other benefit calculated
on his salary or awarded to him by reason of his salary, been overpaid or received any such other
benefit not due to him, an amount equal to the amount of the overpayment shall be recovered from
him by way of the deduction from his salary of such instalments as the head of department, with the
approval of the Treasury, may determine.
[10] The applicant is employed by the respondent and was booked off on sick leave and her application
was declined.
[11] The Applicant prays for an order in the following terms:
19] The respondent submitted that the policy and guidelines on temporary incapacity leave clearly warns
applicants that temporary incapacity leave is only conditionally granted subject to the proviso that
where leave is not approved and the employee has exhausted all sick and annual leave, then the sick
leave taken will be regarded as leave without pay. The policy clears indicated that the employee
assumes a risk: a risk that temporary incapacity leave may not be granted, and, if so, any leave taken
will be regarded as either annual leave or unpaid leave.
[20] The respondent pointed out that nowhere in his founding affidavit did the applicant allege that he
assumed the leave had been granted and that he would have reconsidered his position if he had
been timeously advised of the final outcome. It is obviously an afterthought conceived by his counsel
and is thus irrelevant and inadmissible.
[21] The policy in clause 7.3 permitted the applicant to lodge a grievance against the outcome of his leave
application, but he had failed to do so.
[22] Section 38 of the PSA applies to the applicant’s case in that he received remuneration not due to him-
he was paid while on leave without pay.
[23] Finally, to allow the applicant to retain the money will amount to irregular and wasteful expenditure,
which is contrary to the provisions of the Public Finance Management Act, 1999 (PAAM) as the
applicant did not render any services during the said period.
Analysis and findings
[24] I am aware of the judgment of my learned brother, Cele, J in Public Service Association of South
Africa and Another v PSCBC, Gouvea and Others1in [2013] ZALCD 3 (at para 20), unreported in this
he finds that where an application for temporary incapacity leave is declined outside the 30 day
investigation period, any deduction from an employee’s salary for the period (outside the 30 day
period) that he or she was awaiting a decision from the employer would offend the prohibition against
retrospectivity. Cele, J states, “the consequence of a retrospective effect is that it amounts to an
unreasonable and arbitrary exercise of a discretion with unfair consequences to an employee”. This
has been takes to mean that “employees cannot be subjected to leave without pay/monthly deduction
for TIL/IHR is declined for a period they have been off work sick) or stoppage of salary unless the
application is declined with 30 days or unless they have been given a date to return for work and
have failed to do so2 Bezuidenhout / Department of Health: Eastern Cape (2014) 23 PSCBS 4.2.2,
[25] The decision in Gouvea flowed from an analysis of clause 7.5.1 (b) of PSCBC Resolution 7 of 2000,
which is identical in operation to clause 7.3.5 in PILIR? PILIR, a ministerial determination, indeed
amplifies the earlier PSCBC Resolution 7 of 2000.
[26] In my view this interpretation of PILIR is not sustainable in light of the fact that an employee applying
for temporary incapacity leave has not been granted it yet. A late determination of an employee’s
application for additional leave, as lamentable as this is, and a subsequent instruction to pay back
money to which the employee was not entitled does not produce a decision that retrospectively
deprives the employee of a right to the payment in question. 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.
[27] I also agree with the respondent’s submission that section 38 of the PSA applies to the applicant’s
case in that he received remuneration not due to him.
26. In the present case the applicant applied for TIL for the various periods and the leave applications in
terms of TIL was declined and the employer intends to embarked on a process to deduct monies from the applicant’s salary as leave without pay. She seeks that the leave be approved and that the amounts deducted if already done from her salary be repaid to her.
27. The applicant was advised of the respondent’s decision.
28. This dispute deals with the application of the Resolution and to enquire whether the employer applied
the terms and conditions of the Resolution fairly or correctly. The previous decision of Judge Cele was overtaken by the recent judgment and as such the new guiding principles must apply.
The learned judge has pronounced that this interpretation and application of the policy of PILIR and
determined that it is not sustainable in light of the fact that an employee applying for temporary
incapacity leave has not been granted it yet. A late determination of an employee’s application for
additional leave, as lamentable as this is, and a subsequent instruction to pay back money to which
the employee was not entitled does not produce a decision that retrospectively deprives the
employee of a right to the payment in question. 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 prompted 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.
Section 38 of the PSA applies to the applicant’s case in that she received remuneration not due to
her.
29. The period of absence is long and a reasonable employee ought to have considered the
implications of the leave not being granted and in the light of the aforegoing judgment must bear the
consequences of his actions.
30. The slavish reliance on the 30 days response time not to be penalized for not rendering a service has
now been addressed. An employee must be aware that even if the response is delayed implications
may follow that may have financial implications on the employee.
The employees applying for temporary incapacity leave cannot rely on his/her medical practitioner’s
assessment only because the employer also has the right to subject the employee to its medical
practitioner of like specialty to verify the assessment. The sole reliance of one’s own medical
practitioner’s assessment without consideration of the employer’s rights in most cases leads to
unfavorable consequences for the employee.
I have noted the above judgment by Judge Whitcher that is reportable and the judgment of Judge
Lallie (not reportable) and prefer the Whitcher judgment over the Lallie judgment.
31. Therefore I determine and Order that:
The respondent correctly applied the provisions of the applicant’s application for Temporary
Incapacity Leave;
32. As a result of the foregoing, the applicant must comply with the employer’s finding in respect of her
TIL application.
33. The amount owed by the applicant may be recovered from the applicant.
34. The applicant’s relief is dismissed.