30 January 2026 – ELRC600-25/26KZN

IN THE MATTER BETWEEN

SIMAMANE THAMSANQA Applicant

And

DEPARTMENT OF HIGHER EDUCATION & TRAINING Respondent

ARBITRATION AWARD

Case Number: ELRC600-25/26KZN

Date of Award: 13 January 2026

ELRC Arbitrator: T. Mtolo

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 THE HEARING AND REPRESENTATION

This arbitration was conducted under the auspices of the Education Labour Relations Council in terms of section 191 of the Labour Relations Act 66 of 1995 (“the LRA”).
The dispute was referred as an unfair labour practice dispute relating to the provision of benefits, contemplated in section 186(2)(a) of the LRA.
The arbitration was set down for hearing on 16 October 2025 and was conducted virtually via an online platform. The matter was later postponed part-heard for continuation on 24 and 25 November 2025, closing arguments wee received on 03 and 04 December 2025.
At the commencement of the proceedings, the Commissioner confirmed the attendance of the parties, explained the arbitration process, and placed the applicable ground rules on record.
The Applicant was present and represented by a Legal Representative Mr Richard Donen initially and another Shabangu M.M at the latter meeting.
The Respondent, the Department of Higher Education and Training, was represented by its Human Resources representative Mr T.M Mhlongo. An observer from the Respondent was also present.
The parties confirmed the existence of two bundles: Applicant’s Bundle, consisting of approximately 178 pages; and Respondent’s Bundle, including supplementary documentation obtained through the Health Risk Manager. Issues relating to the late exchange of documents were addressed at the outset. After hearing submissions from both parties, the Commissioner granted a postponement part-heard to allow the Respondent a fair opportunity to consider the Applicant’s bundle and to prepare for cross-examination.

BACKGROUND TO THE DISPUTE

The Applicant is employed by the Respondent as a Lecturer at a public TVET College within KwaZulu-Natal. His employment relationship with the Respondent.
It is common cause that the Applicant has been absent from active duty for an extended period as a result of a psychiatric condition, for which he has been receiving ongoing medical treatment from a specialist psychiatrist.
The Applicant exhausted his normal sick leave entitlement and thereafter applied for Temporary Incapacity Leave in terms of:
• Collective Agreement Resolution 7 of 2000, and
• the Policy and Procedure on Incapacity Leave and Ill-Health Retirement (PILIR).
Between October 2024 and September 2025, the Applicant submitted four applications for Temporary Incapacity Leave in respect of the following periods:

• 1 October 2024 to 11 December 2024;
• 25 February 2025 to 28 March 2025;
• 7 April 2025 to 20 June 2025; and
• 15 July 2025 to 30 September 2025.

Each application was supported by medical documentation and processed through the Respondent’s established procedures, including referral to the appointed Health Risk Manager.
All four applications were ultimately declined, and the Applicant was informed of the outcomes. Following the refusals, the Applicant lodged internal grievances and made resubmissions, which did not alter the outcomes.
The Applicant thereafter referred the present dispute to the Education Labour Relations Council, alleging that the Respondent’s conduct in relation to the processing and refusal of his Temporary Incapacity Leave applications constituted an unfair labour practice.

ISSUES IN DISPUTE

The issues to be determined in this arbitration are:
Whether the Respondent complied with Collective Agreement Resolution 7 of 2000 and the PILIR in the processing and determination of the Applicant’s Temporary Incapacity Leave applications.
Whether the Respondent finalised the Applicant’s applications within the prescribed timeframes, and the consequence of any failure to do so.
Whether the decisions to decline the applications were taken by the Head of Department or a duly authorised delegate, as required by policy.
Whether the manner in which the Health Risk Manager assessed the applications was consistent with the requirements applicable to psychiatric incapacity.
Whether the Respondent’s conduct amounted to an unfair labour practice relating to the provision of benefits.

SURVEY OF EVIDENCE AND ARGUMENTS
OPENING STATEMENTS

Applicant’s Opening Statement

In his opening statement, the Applicant contended that the dispute before the Council concerns the Respondent’s failure to lawfully and fairly administer Temporary Incapacity Leave in accordance with Collective Agreement Resolution 7 of 2000 and the Policy and Procedure on Incapacity Leave and Ill-Health Retirement (PILIR).
It was submitted on behalf of the Applicant that he has been under the care of a psychiatrist since 2023, that his condition is psychiatric in nature, and that his applications therefore fell squarely within the ambit of Annexure G of PILIR, which prescribes a specialised process for psychiatric incapacity.
The Applicant’s representative submitted that four Temporary Incapacity Leave applications were lodged for consecutive periods between October 2024 and September 2025, all of which were declined. It was argued that three of these applications were finalised outside the mandatory 30-day period, while the fourth, although communicated within 30 days, was not decided by a properly authorised official.
It was further submitted that the Respondent unlawfully relied on recommendations issued by SOMA Initiative, including a recommendation signed by a general medical practitioner, despite the Applicant’s condition being psychiatric. The Applicant’s case was that no psychiatrist appointed by the Respondent ever assessed his incapacity, nor was his treating psychiatrist consulted, despite the Applicant having provided written consent.
The Applicant contended that the Respondent failed to comply with mandatory procedural safeguards, acted outside the bounds of its discretion, and thereby committed an unfair labour practice relating to the provision of benefits. The Applicant sought appropriate relief, including the setting aside of the refusals and financial redress.

Respondent’s Opening Statement

In its opening statement, the Respondent submitted that Temporary Incapacity Leave is not an entitlement, but a discretionary benefit, and that the Applicant bears the onus of providing sufficient medical evidence to justify such leave.
The Respondent contended that all of the Applicant’s applications were referred to the designated Health Risk Manager, SOMA Initiative, which assessed the medical information submitted and recommended that the applications be declined due to insufficient evidence of incapacity.
It was submitted that the Respondent was entitled to rely on the recommendations of SOMA and that delays in processing the applications did not render the decisions invalid or convert refusals into approvals.
The Respondent denied that it committed any unfair labour practice and prayed that the claim be dismissed.

APPLICANT’S CASE

EVIDENCE IN CHIEF: MR T. SIMAMANE

The applicant, Mr T. Simamane, testified under oath. He confirmed that he is employed by the respondent as a lecturer. He stated that he last rendered services around September 2023, and that he has not returned to active duty since then. He attributed his absence to a sustained mental-health condition which, according to him, affected his ability to function in a teaching environment that requires sustained concentration, emotional regulation, and active engagement with students.
The applicant testified that he suffers from depression and that he has been treated by a psychiatrist whom he identified as a professor (referred to during evidence as “Professor L”). He stated that his incapacity is not merely a personal medical issue but is connected, in his version, to workplace events and stressors. He explained that he experienced intimidation at campus level and distressing incidents involving students during protest periods, which he said aggravated his mental condition. He indicated that his condition impaired his concentration and cognitive functioning, and he testified that he could not responsibly teach or interact with students in that state. Against that background, the applicant testified that he submitted four applications for Temporary Incapacity Leave (TIL) for distinct periods. He testified that the applicable framework for these applications is the collective agreement governing incapacity leave in the public service, which he identified as PSCBC Resolution 7 of 2000, and that the processing of applications is also guided by a departmental directive referred to in the proceedings as the PILIR document. He testified that his central complaint is that the respondent refused the benefit of temporary incapacity leave in a manner that was not compliant with those prescripts, and that the refusals were consequently unfair. In support of his case, the applicant referred to Bundle B (the bundle used in the proceedings) which contains the application forms, consent forms, supporting medical documents, correspondence reflecting refusals, grievance material, and extracts of the PILIR document and collective agreement provisions. He further testified that he signed the standard employee consent forms in the applications, authorising the employer and the health risk manager to access his medical records and obtain information from his treating Psychiatrist practitioners. He relied on this consent to argue that the evaluators were not limited to “what was filed” and were empowered to obtain further information directly from his doctor if they believed the documentation was insufficient.
The applicant testified that the first TIL application related to the period 1 October 2024 to 11 December 2024. He referred to the application form at Bundle B pages 15 to 30, and confirmed that the relevant period of absence is captured on the form (with the start and end dates appearing above the “work history” section). He testified that he signed the application on 30 September 2024, as reflected on the form (including the signature page referred to during testimony at Bundle B page 19). He confirmed that he signed the consent authorising access to medical records at Bundle B page 20. He testified that the medical portion of the form was completed in conjunction with his psychiatrist and that the supervisor motivation portion was completed after he submitted the form, consistent with the employer’s internal process. He testified that, notwithstanding the submission of the first application in late September 2024, he later received a refusal letter dated 25 March 2025, located at Bundle B page 96. He testified that this outcome was communicated long after the application was submitted and that, in his understanding of the prescripts, this delay was itself material because TIL applications are required to be finalised timeously. He also testified that the refusal referenced insufficient medical information, particularly around treatment and the level/type of multidisciplinary intervention.
The applicant testified that he submitted a second TIL application for the period 6 January 2025 to 28 March 2025, and he referred to the relevant application form at Bundle B pages 36 to 52. He confirmed that he signed this application on 6 January 2025 (referred to during evidence around Bundle B page 40) and that he again signed the required consent authorising access to medical information. He testified that supporting documentation was submitted with the application and that his psychiatrist completed the medical components. He testified that a refusal letter was later received in relation to this application, located at Bundle B page 98, dated 25 April 2025. He drew attention to a discrepancy: the refusal letter referred to a period 25 February 2025 to 28 March 2025 and reflected 23 days, whereas his application on the form covered 6 January 2025 to 28 March 2025. He testified that he did not understand why the respondent’s refusal did not correspond to the actual period applied for, and he contended that this discrepancy was indicative of an administrative and evaluative process that was not properly applied to his application as submitted. The applicant testified that he submitted a third TIL application for the period 7 April 2025 to 20 June 2025, referring to the form at Bundle B pages 56 to 70. He confirmed that he signed this application on 7 April 2025 (referred to during evidence at approximately Bundle B page 60) and that he again signed the consent authorising access to medical records. He testified that the medical documentation was completed with his psychiatrist and that the application was submitted through the employer’s normal channels.
He testified that he submitted a fourth TIL application for the period 15 July 2025 to 30 September 2025, referring to the form at Bundle B pages 76 to 92. He confirmed that he signed the application and consent on 15 July 2025. He testified that the outcomes for these applications were communicated through letters and emails which he placed before the arbitration. On the communication of outcomes, the applicant testified that he received an email at Bundle B page 105 which transmitted refusal outcomes (he testified that the date format suggested this email was 28 July 2025, given the way the date was written and the internal inconsistency of “28/7/2025” as compared to other references). He further referred to correspondence at Bundle B page 104, in which an outcome is communicated regarding TIL. He testified that the outcomes were conveyed by officials who were not the Head of Department, and that he consistently questioned whether the decision-maker had lawful delegated authority and whether the process reflected genuine application of mind as required by the PILIR document.
A core aspect of the applicant’s evidence was his attack on the quality, competence and scope of the medical assessment process used to decline his TIL. He testified that the reason provided for refusal repeatedly centred on “insufficient evidence” of appropriate treatment or multidisciplinary intervention and, importantly, the view that there was insufficient evidence to refer him to a psychiatrist/specialist. He testified that this reasoning did not “hold water” in his case because he was already under psychiatric care and his treating psychiatrist had supported the applications. In his version, it was irrational for the assessment process to suggest that there was not sufficient evidence to warrant psychiatric referral when the condition was psychiatric in nature and the treating specialist documentation existed or could have been obtained.
Linked to that, the applicant testified that the assessors involved in declining his applications appeared to be medical officers/medical practitioners in an assessment structure (referred to in the proceedings as an external/assessment process and associated reports), and he raised the issue that persons who are not psychiatric specialists should not be substituting their judgment for that of a treating psychiatrist in a mental-health incapacity matter. He testified, in substance, that the process amounted to medically under-qualified decision-making on psychiatric incapacity, or at minimum that the process failed to show that an appropriately qualified specialist assessment was conducted before refusal.
The applicant reinforced this by relying on the consent mechanism in the application pack. He testified that, by signing the consent at Bundle B page 20 (and the equivalent consent pages in the later applications), the health risk manager and employer were authorised to contact his treating doctor(s) and obtain clarification, records, or further reports. He testified that the refusal rationale of “insufficient evidence” was therefore not an acceptable basis to decline, because the process itself empowered the respondent’s agents to obtain what they claimed was missing. In his version, the failure to engage his treating psychiatrist and the reliance on alleged insufficiency was a material procedural defect.
He further testified that, on the application forms themselves, the portion titled “Final decision by the Head of Department” (discussed during testimony when he was taken to those sections, for example around Bundle B page 52 and Bundle B page 92) was not completed on the forms he initially received/retained. He testified that this strengthened his contention that the statutory/administrative requirement of a decision by the Head of Department or authorised delegate was not complied with in the manner prescribed, or at least was not transparently recorded. In support of his challenge on delegation and the identity of the decision-maker, the applicant testified that he later received documents reflecting “final decisions” with signatures and names of individuals other than the Head of Department. He referred to documents at Bundle B pages 173 to 175. In relation to the first period (1 October 2024 to 11 December 2024), he testified that the “final decision” reflected on the later document was dated 18 June 2025 (Bundle B page 173), and he testified that the signature was not that of the Head of Department. In relation to the second and third applications, he testified that similar documents reflected decision signatures dated 25 July 2025 (including Bundle B page 174), again not signed by the Head of Department. He testified that, despite requesting it, he was not provided with proof of a lawful written delegation authorising those individuals to make final decisions on behalf of the Head of Department. The applicant testified that, following the refusals, he lodged grievances and objections. He referred to grievance documents at Bundle B pages 148 to 151, and to further documentation he characterised as supporting material addressing the grounds raised for refusal (referred to in evidence as running beyond Bundle B page 152, with reference made during testimony into the later pages). He testified that he received responses dismissing his grievances and maintaining the refusals, including correspondence at Bundle B pages 173 and 175 onward, signed by officials he identified as not being the Head of Department.
The applicant also testified about the PILIR document itself and how it prescribes the decision-making sequence. He referred to the PILIR document in Bundle B (where it appears later in the bundle) and specifically to the portion read into the record at Bundle B page 195, under the paragraph identified in the proceedings as paragraph “E”. He testified that this portion requires that, after receipt of the application and medical certificate, the employer must approve or refuse (or conditionally approve) and must apply its mind to the relevant medical information and recommendations. He drew attention to the line immediately before paragraph “F”, which references use of the application form for decision-making. He testified that, in his case, the prescribed manner of recording and applying the mind—particularly through completion of the “final decision” portion and clear linkage to the health risk manager’s recommendation—was not evident on the documents initially reflected in his bundle, and this was why he pursued disclosure of delegation documents and full decision records.
Finally, the applicant testified that his principal practical concern is the downstream consequence of refusal—namely that the respondent may treat the leave as unauthorised or recover salary paid during the relevant periods, causing occupational and financial prejudice. He testified that he seeks a finding that the respondent’s refusal of the benefit was unfair because it did not comply with the time and decision-maker requirements and was substantively unreasonable in the manner in which the medical evidence was evaluated, particularly in a psychiatric incapacity context. That concluded the applicant’s evidence in chief, after which the respondent requested a postponement to prepare for cross-examination and to consider supplementing its bundle, and the commissioner granted the postponement and set the continuation down for 24–25 November 2025, with the parties to advise whether the proceedings would continue virtually or in person.

Cross-examination of the Applicant (Mr T. Simamane)

In cross-examination, the Applicant was taken to the Temporary Incapacity Leave (“TIL”) documentation and outcome letters, and he confirmed that the documentation set out multiple periods of absence and multiple applications, with most outcomes being recorded as “declined.” He was specifically referred to the set of medical leave applications and periods reflected in the bundles, and he confirmed the associated periods and that the outcomes were declined in the outcome letters.
The Applicant’s position in cross-examination was that the medical certificates did not merely list dates; they also reflected a condition and an opinion, and that the refusal/outcome process was defective because, in his view, the assessments and/or recommendations were being made by persons who were not appropriately qualified to determine his incapacity in a psychiatric context. In substance, he maintained that psychiatric incapacity is not properly assessed by general medical officers or junior doctors as “experts” where the treating specialist is a psychiatrist, and he repeatedly returned to the proposition that the correct process required engagement at psychiatrist level (or, at minimum, verification with his treating psychiatrist), not a paper-based rejection by a generalist. When the chronology of the applications and decisions was put to him, the Applicant highlighted the 30-working-day decision timeframe under PILIR and disputed the compliance of the process. He pointed to the first period reflected as 1 October 2024 to 11 December 2024, and he associated the SOMA/health-risk-manager report date with 18 June 2025 (and related reporting appearing at pages such as B113A), contending that the sequencing was illogical because the final decision-maker could not rationally decide before the relevant health-risk-manager process had run its course. He then moved to further application/report references dealing with later periods, including a report dated 23 July linked to the subsequent application trail (including pages such as B119 and B126).
The Applicant’s contention in cross-examination was that, as a matter of governance, the decision should align with a proper chain: the health risk manager report should logically precede the decision attributed to the Head of Department (“HOD”) (or an authorised delegate), because the HOD is positioned as the final decision-maker in the framework he was relying on. On the same theme, he challenged the validity of decisions which, on his version, pre-dated required steps and/or reflected anomalies between the dates in Parts F and G of the forms, and he placed emphasis on the absence of properly completed sections (including Part G) in the bundle forms he was shown. The Applicant further disputed the legitimacy of letters signed by persons who were not the HOD/Director-General, and he challenged whether any written delegation existed to empower those signatories to take binding decisions on the applications. He maintained that the Respondent had not produced proof of written delegation, yet letters refusing the applications were signed and issued in that manner. Still on process integrity, the Applicant raised the PILIR requirement (as he understood it) that where an employee consents, the health risk manager’s assessment should include contact with the treating medical practitioner to verify information where necessary. He maintained that SOMA’s reports did not reflect contact with his treating psychiatrist, despite the application form reflecting consent for obtaining health records/medical examination, and he argued that, where consent is provided, there should be an investigation beyond what is simply contained in the application pack. In support of his challenge to SOMA’s approach, the Applicant testified that SOMA reports should not be treated as credible on the key question of psychiatric incapacity because, on his version, the assessments were done by a general practitioner rather than a psychiatrist. He therefore argued that the “expertise layer” was misaligned to the medical condition and the nature of the incapacity being asserted. The Applicant also dealt with the repeated “declined” outcomes across the periods and associated applications, and he emphasised that delays (in some instances) were well outside the stipulated timeframe. He referred to specific examples from the bundles where submission dates and refusal dates were far apart, and where the refusal dates reflected 25 July 2025 for applications submitted earlier in 2024/2025, and he treated those time lapses as a core procedural defect. In cross-examination he further confirmed that, following declined outcomes, he pursued internal challenge mechanisms, including resubmissions with additional medical documentation. He confirmed that further documentation from his psychiatrist was submitted for reassessment, and that he was informed of requirements for resubmission.
A specific factual point was also canvassed relating to dementia: the Applicant confirmed that he was not diagnosed with dementia, while simultaneously raising concern that a sentence he considered important (in context of functional capacity) was omitted or not properly carried through in the way the matter was being dealt with.

Re-examination of the Applicant

In re-examination, the Applicant anchored his version back to his ongoing clinical trajectory. He stated that he had been under treatment by a psychiatrist since 2023 and had not stopped treatment. He linked this to his contention that the incapacity process needed to be aligned to specialist psychiatric assessment and verification, particularly where the treating practitioner is a psychiatrist and the incapacity asserted is psychiatric in nature. He further confirmed that after the applications were declined, he exercised his rights by filing grievances and pursuing the matter through the dispute-resolution architecture available to him. He maintained that the matter remained live and that the continued refusal of TIL, coupled with the way the process was administered, was inseparable from the broader employment relationship issues he had raised.

RESPONDENTS’ EVIDENCE

Witness: Dr Suzette Bossert testified under oath after the commissioner administered the oath and confirmed that she regarded the oath as binding on her conscience and that her evidence would be the truth. She testified as a witness for the respondent.
Dr Bossert stated that she is a general medical practitioner registered with the Health Professions Council of South Africa and that she is employed in her capacity as a medical officer within SOMA, the health risk management service appointed by the Department. She explained that her role at SOMA is to provide medical advice and medical input into assessments conducted by SOMA for the Department in relation to incapacity matters. She confirmed that her functions include providing input on applications for temporary incapacity leave as well as other incapacity-related applications such as ill-health retirement. Dr Bossert explained the process followed when an application for temporary incapacity leave reaches SOMA. She stated that once an application is received, it is first processed administratively. The administrative unit ensures that all required documentation has been submitted, including the mandatory consent form. She indicated that where a consent form is not submitted, the assessment process cannot proceed. Once the documentation is confirmed to be complete, the application is captured and allocated to an assessor. She testified that assessors at SOMA are predominantly occupational therapists, although historically other healthcare practitioners such as nurses were also involved. She explained that the assessor evaluates the information provided in the application against the guidelines contained in the PILIR framework. Medical officers, including herself, provide medical input regarding the medical information submitted. Based on this assessment process, SOMA then formulates a recommendation either to approve or to decline the application for temporary incapacity leave, and that recommendation is forwarded to the Department.
Dr Bossert confirmed that SOMA’s processes are aligned with the PILIR policy and referred to the policy document contained in the respondent’s bundle. She confirmed that clause 7 of the policy governs the management of temporary incapacity leave. She explained her understanding of clause 7.1.1.6, stating that temporary incapacity leave is not an automatic entitlement nor an unlimited extension of normal sick leave. She testified that temporary incapacity leave is granted conditionally at the discretion of the employer and does not automatically follow once an employee has exhausted normal sick leave. She described temporary incapacity leave as a discretionary measure rather than a guaranteed benefit. Dr Bossert was referred to the applicant’s bundle containing the guideline documents. She testified that the guidelines contained in the policy are intended to assist assessors in determining whether sufficient information has been provided for accurate assessment, particularly in relation to specific categories of medical conditions such as psychiatric conditions, musculoskeletal conditions, and cardiac disease.
When directed to the psychiatric guidelines contained in the policy, Dr Bossert explained that paragraph 1.1.1 provides that incapacity applications on psychiatric grounds should be assessed and treated by a psychiatrist. She testified that her understanding of this provision is that where incapacity arises from a psychiatric condition, the employee should have been treated by a psychiatrist. She explained further that paragraph 1.1.2 recognises the role of general practitioners and clinical psychologists, but that psychiatric conditions severe enough to warrant permanent incapacity should have been optimally treated by a psychiatrist. She stated that paragraph 1.1.3 requires psychiatrists to express opinions on functional impairment rather than incapacity itself. Dr Bossert clarified the distinction between functional impairment and incapacity. She testified that impairment refers to a loss or abnormality of a body structure or function resulting from a health condition, whereas disability or incapacity refers to the restriction or limitation in an individual’s ability to participate in activities or perform occupational functions as a result of that impairment. She further testified that the policy makes it clear that the final decision regarding incapacity lies with the Head of Department, acting on the recommendation of the health risk manager, and not with doctors or specialists. She explained that SOMA provides recommendations, but the ultimate decision rests with the employer.
Dr Bossert addressed the provisions dealing with doubtful cases. She testified that where doubt exists, the health risk manager may request a psychiatrist nominated by the health risk manager to review a case and provide an objective opinion on impairment only. She explained that in her understanding, a doubtful case arises where it has not been sufficiently demonstrated that an application qualifies for approval. Dr Bossert then testified in detail regarding each of the applicant’s four applications for long-period temporary incapacity leave. She confirmed that SOMA received four separate applications submitted by the applicant for the periods 1 October 2024 to 11 December 2024, 6 January 2025 to 28 March 2025, 7 April 2025 to 22 June 2025, and 15 July 2025 to 30 September 2025.
In relation to the first application covering the period from 1 October 2024 to 11 December 2024, Dr Bossert confirmed that SOMA issued a consultancy report recommending that the application be declined. She testified that SOMA considered Part A of the application, the Part D medical report from the treating psychiatrist, a supervisor’s motivation, and an additional psychiatrist report dated September 2024. She stated that the documentation showed that the applicant had been under psychiatric care since 2023 and that a Global Assessment of Functioning score of between 50 and 60 was recorded, indicating moderate symptoms. She testified that there was no evidence of significant changes to medication, no detailed information regarding psychotherapy, no evidence of multidisciplinary intervention, and no functional capacity evaluation demonstrating occupational incapacity. On that basis, SOMA concluded that insufficient medical information had been provided to support approval of temporary incapacity leave.
Dr Bossert testified that the second application for the period 6 January 2025 to 28 March 2025 was similarly assessed and declined. She stated that although further consultation with the treating psychiatrist had occurred and a psychiatrist report dated 6 January 2025 was submitted, there remained insufficient information regarding multidisciplinary intervention and no functional capacity assessment demonstrating that the applicant was incapacitated from performing his occupational duties.
She testified that the third application, covering the period from 7 April 2025 to 22 June 2025, was also declined for similar reasons. Dr Bossert explained that SOMA again noted that although psychiatric consultations continued, there was still no objective assessment of functional capacity and no evidence of multidisciplinary management beyond psychiatric treatment. With regard to the fourth application for the period 15 July 2025 to 30 September 2025, Dr Bossert testified that SOMA recommended that the application be declined on the basis that insufficient medical information had been provided to demonstrate functional limitations preventing the applicant from working. She testified that there was again no evidence of intensive multidisciplinary management or functional capacity assessment.
Dr Bossert confirmed that the applicant made use of the grievance or resubmission process following the initial declinations. She explained that the resubmission process allows an employee to submit additional medical information for reconsideration. She testified that in this case, additional psychiatric reports were submitted during the resubmission process.
She testified that one of the resubmitted psychiatric reports stated that multidisciplinary treatment generally involves professionals such as psychiatrists, psychologists, social workers, occupational therapists, and physiotherapists, but that the decision to involve additional professionals’ rests with the treating psychiatrist. She stated that the report indicated that treatment by a psychiatrist and a psychologist was considered sufficient in the applicant’s case. Dr Bossert testified that the psychiatrist further indicated that the applicant’s functional capacity to lecture was not thought to be impaired to a degree comparable to conditions such as dementia.
Dr Bossert explained that this information did not alter SOMA’s recommendation, as it still did not provide objective evidence of functional limitations preventing the applicant from performing his duties. She testified that unresolved workplace issues or dissatisfaction with work circumstances do not constitute evidence of medical incapacity.
She testified that following resubmission, SOMA reassessed the applications and again recommended declination for each period, including the grievance assessments covering the periods October to December 2024, January to March 2025, April to June 2025, and July to September 2025. She stated that the reasons for declination remained consistent, namely the absence of objective functional capacity assessments and insufficient evidence of multidisciplinary intervention supporting incapacity.
Dr Bossert testified that although some of the SOMA recommendations were issued outside the 30-day period prescribed by the policy, the timing of the recommendations would not have changed the outcomes, as the recommendations were based on the medical information provided. She stated that even where recommendations were issued within 30 days, the outcome would have remained the same due to the insufficiency of the information. She testified that SOMA does not directly contact employees to request additional information prior to issuing recommendations, as SOMA communicates through the Department. She stated that the responsibility to provide sufficient medical evidence rests with the employee, and that SOMA cannot build a case on behalf of an employee. Dr Bossert further testified regarding the consent forms signed by the applicant. She explained that although the policy allows the health risk manager to arrange additional medical assessments if necessary, such assessments are not compulsory and are initiated only where sufficient information exists to justify further investigation. She stated that in this case, the information provided did not reach a threshold warranting secondary assessments.
Under cross-examination, the Applicant’s representative directed Dr Bossert to page 100 of Bundle A, being Annexure G to PILIR, titled Guidelines for Incapacity Assessment on Psychiatric Grounds. He asked her to confirm whether this annexure formed part of the applicable policy framework governing temporary incapacity leave. Dr Bossert confirmed that it did.
He referred her specifically to paragraph 1.1.1, which provides that incapacity applications on psychiatric grounds should be assessed and treated by a psychiatrist. Dr Bossert stated that her understanding of the provision was that the employee must be treated by a psychiatrist, which she confirmed was the case in respect of the Applicant.
The Applicant’s representative put it to her that the wording of the clause refers not only to treatment but also to assessment. Dr Bossert maintained that, in her interpretation, the assessment requirement was satisfied through the treating psychiatrist’s reports submitted by the employee, and that SOMA’s role was not to duplicate that assessment but to evaluate incapacity for work purposes.
He then directed her to paragraph 1.4.5 of Annexure G, which provides that where doubt exists, another expert opinion may be obtained. Dr Bossert was asked what she understood by the concept of “doubt” in this context. She explained that doubt arises where the information before the Health Risk Manager is inconclusive as to whether the employee qualifies for incapacity leave.
The Applicant’s representative referred her back to the SOMA recommendations contained in Bundle B, where it was stated that there was insufficient medical information to support the applications. He put it to her that insufficient information necessarily implies uncertainty as to whether the criteria for incapacity were met. Dr Bossert responded that, in her view, the insufficiency was determinative rather than uncertain, and that the absence of functional incapacity evidence justified a recommendation to decline.
The Applicant’s representative then directed Dr Bossert to the consent form signed by the Applicant authorising the Health Risk Manager to obtain further medical information and to arrange assessments. He asked whether SOMA made use of this consent to contact the Applicant’s treating psychiatrist or to arrange an independent psychiatric assessment. Dr Bossert confirmed that no such contact or assessment was arranged.
He further referred her to the subsequent psychiatric report submitted by the Applicant on resubmission and asked whether this constituted additional medical information. Dr Bossert confirmed that it did but stated that it still did not address functional incapacity or workplace limitations to the degree required by PILIR.
The Applicant’s representative asked whether SOMA disputed the psychiatric diagnosis made by the treating specialist. Dr Bossert stated unequivocally that SOMA did not dispute the diagnosis and accepted that the Applicant suffered from a psychiatric condition.
He then referred her to correspondence prepared by SOMA in response to a complaint lodged by the Applicant, in which it was stated that SOMA did not override psychiatric reports but merely provided recommendations to the employer. Dr Bossert confirmed that this remained her position.
The Applicant’s representative put it to her that SOMA did not have psychiatrists as part of its assessment panel. Dr Bossert confirmed that SOMA’s panel consisted of general practitioners, occupational health practitioners, nurses, and occupational therapists, and that psychiatrists were not permanent members of the panel.
He asked whether SOMA could obtain psychiatric input if required. Dr Bossert confirmed that referral to a psychiatrist was possible where necessary. It was put to her that annexure g was not adhered to and she disagreed.
During re-examination, Dr Bossert reiterated that secondary assessments under the policy are discretionary and dependent on the adequacy of information submitted. She confirmed that the policy places the onus on the employee to demonstrate incapacity. She maintained that SOMA’s recommendations complied with the policy and that no guideline provisions were violated in the assessment of the applicant’s applications.
She confirmed that SOMA consistently applied the same criteria to both the initial applications and the resubmissions and that the recommendations to decline were based on the absence of objective evidence demonstrating functional incapacity preventing the applicant from performing his duties.
Closing arguments were considered. ANALYSIS OF EVIDENCE AND ARGUMENTS
The legal point of departure is settled. Section 23 of the Constitution guarantees the right to fair labour practices. The LRA gives effect to this right through section 186(2)(a), which protects employees against unfair conduct.
This dispute falls to be determined in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995, which defines an unfair labour practice as any unfair act or omission that arises between an employer and an employee involving the provision of benefits. Temporary Incapacity Leave constitutes a “benefit” as contemplated in the section, as it flows from a collective agreement and policy framework applicable to public service employees.
Clause 7.5.1(b) of Resolution 7 of 2000 is clear and peremptory: “The employer shall during 30 working days, investigate the extent of inability to perform normal official duties, the degree of inability and the cause thereof. Investigations shall be in accordance with item 10(1) of Schedule 8 of the Labour Relations Act of 1995.” Similarly, clause 7.3.5(e) of PILIR provides that the employer must, within 30 working days after receipt of the application form and medical certificate, approve or refuse temporary incapacity leave.
The nature of the dispute must be properly characterised. In HOSPERSA obo Tshambi v Department of Health KZN (2016) 37 ILJ 1839 (LAC), the Labour Appeal Court held that a dispute concerning the fairness of a decision to decline temporary incapacity leave constitutes an unfair labour practice dispute relating to the provision of benefits, over which bargaining councils have jurisdiction. The Applicant’s complaint is twofold: first, that the Respondent failed to process his applications within the mandatory 30-day timeframe; and second, that the substantive decisions to decline the applications were unfair. Both aspects fall squarely within the definition of an unfair labour practice relating to the provision of benefits. I am satisfied that this Council has jurisdiction to determine the disputeThe Health Risk Manager (or service provider such as SOMA) performs an evaluative and advisory function. The final decision rests with the Head of Department or a duly authorised delegate.
Where incapacity arises from psychiatric or psychological conditions, it is the applicants’ evidence that Annexure G of PILIR applies, which requires that such conditions be assessed by an equally qualified Psychiatrist from or through SOMA.
In unfair labour practice disputes concerning benefits, the commissioner does not substitute the employer’s discretion with their own, but must determine whether the discretion was exercised fairly, rationally, and procedurally fairly, and in accordance with the governing prescripts. The enquiry is not whether the commissioner would have approved the benefit, but whether the employer’s conduct in refusing it was unfair.
Having regard to the relief, opening statements, evidence, and submissions, the issues requiring determination are the following:
Whether the Respondent processed and determined the Applicant’s Temporary Incapacity Leave applications in compliance with PSCBC Resolution 7 of 2000 and PILIR, including compliance with prescribed timeframes.
Whether the decisions to refuse the applications were taken by the Head of Department or a duly authorised delegate, as required by the policy framework.
Whether, given that the Applicant’s condition is psychiatric in nature, the Respondent and its service provider properly applied Annexure G of PILIR, including whether the medical assessment process was appropriate.
Whether, viewed cumulatively, the Respondent’s conduct in refusing the Applicant’s Temporary Incapacity Leave applications constituted an unfair labour practice within the meaning of section 186(2)(a) of the LRA.
Only two witnesses testified in this arbitration: the Applicant himself, Mr Simamane, and Dr Bossert, who testified on behalf of the Respondent as a representative of SOMA, the service provider responsible for assessing Temporary Incapacity Leave applications.
The evidence must therefore be assessed on a one-witness-against-another basis, with due regard to credibility, reliability, internal consistency, and the probabilities when measured against the applicable policy framework.
The Applicant’s evidence
The Applicant testified that he is employed as a lecturer within the Department of Higher Education and Training and that he has been absent from work for an extended period due to a psychiatric condition, for which he has been under specialist psychiatric care since 2023. His evidence was that his work requires sustained cognitive engagement, concentration, and emotional regulation, and that his condition materially impaired his ability to perform his duties.
He testified that he submitted four applications for Temporary Incapacity Leave covering the periods from October 2024 through to September 2025. Each application was supported by medical documentation completed by his treating psychiatrist. He further testified that he signed the employee consent in each application, expressly authorising the employer, the Health Risk Manager, and any relevant medical practitioners to access his medical records and to engage with his treating doctors.
A central aspect of the Applicant’s evidence was that the applications were not finalised within the 30-day period contemplated in PSCBC Resolution 7 of 2000 and PILIR. In particular, he testified that the first application, submitted in September 2024, was only responded to in March 2025. He further testified that subsequent applications were also finalised well outside the prescribed period, exposing him to prolonged uncertainty and potential adverse consequences.
The Applicant also testified that the refusal letters repeatedly cited “insufficient medical evidence” and lack of multidisciplinary intervention. He disputed this rationale, stating that he was under the care of a psychiatrist and that, given the psychiatric nature of his condition, he did not understand how medical officers who were not psychiatrists could override or discount the treating specialist’s assessment. He further testified that, despite his consent, there was no indication that SOMA or the employer ever contacted his treating psychiatrist to clarify or supplement the information.
On the procedural aspect, the Applicant testified that the application forms initially returned to him reflected no completed section for the final decision by the Head of Department. When later documents were furnished, they were signed by officials who were not the Head of Department, and no written delegation of authority was provided to him, despite his formal request for such documentation.
The Applicant further identified discrepancies between the periods applied for and the periods referenced in refusal correspondence, particularly in respect of the second application, which undermined his confidence that his applications were properly and accurately assessed.
Dr Bossert’s evidence
Dr Bossert testified as a medical professional employed by SOMA, the service provider contracted to assess Temporary Incapacity Leave applications. She explained SOMA’s role as providing an independent medical assessment and recommendation to the employer, with the final decision resting with the Department.
She testified that Temporary Incapacity Leave is not an entitlement and that approval depends on objective evidence demonstrating that the employee’s condition results in functional incapacity to perform the duties of their post. She distinguished between a medical diagnosis and proof of incapacity, stating that the presence of a psychiatric diagnosis does not, on its own, establish incapacity for work.
In relation to psychiatric conditions, Dr Bossert referred to Annexure G of PILIR, explaining that while it requires that employees be assessed and treated by a psychiatrist, it does not mean that every application must automatically be escalated to an employer-appointed psychiatrist. She testified that secondary specialist assessments are considered in “doubtful cases” where the information presented reaches a threshold warranting further investigation. Dr Bossert testified that, in the Applicant’s case, the applications were consistently declined because the documentation provided did not adequately demonstrate functional impairment, lacked evidence of multidisciplinary treatment, and did not include functional capacity evaluations linking the condition to an inability to perform lecturing duties. She was clear that SOMA did not dispute the existence of a psychiatric condition but found the evidence insufficient to justify Temporary Incapacity Leave.
Importantly, Dr Bossert conceded under cross-examination that some of the recommendations were issued outside the 30-day timeframe contemplated in the policy. She maintained, however, that the delays did not affect the substantive outcome of the assessments.
She also confirmed that she herself is not a psychiatrist, and that the assessments involved occupational therapists and medical officers as part of SOMA’s standard evaluation
The central procedural issue is whether the Respondent complied with the 30-working-day timeframe prescribed by both Resolution 7 of 2000 and PILIR. The evidence establishes the following chronology for each application: First Application (1 October 2024 to 11 December 2024): The application was signed and submitted on 30 September 2024. The outcome letter communicating refusal is dated 4 July 2025. This represents a delay of approximately nine months, vastly exceeding the 30-working-day period. Second Application (6 January 2025 to 28 March 2025): The application was submitted on 6 January 2025. The refusal was communicated on 25 July 2025, approximately six months later, again well outside the prescribed period. Third Application (7 April 2025 to 20 June 2025): The application was submitted on 7 April 2025. The refusal was communicated on 25 July 2025, approximately three and a half months later, exceeding the 30-working-day period. Fourth Application (15 July 2025 to 30 September 2025): The application was submitted on 15 July 2025. The refusal was communicated on 25 July 2025, which falls within the 30-working-day period.
It is common cause that three of the four applications were decided well outside the 30-day timeframe. Dr Bossert, testifying for the Respondent, acknowledged that several SOMA recommendations were issued outside the prescribed period. The Respondent’s representative conceded that the applications were finalised outside the required timeframe because they were submitted late by the Applicant’s supervisor and were therefore not prioritised.
The question of what consequences flow from an employer’s failure to decide a TIL application within the 30-day period has generated considerable jurisprudence. The Respondent relies on POPCRU obo Lee Mbongwa v Department of Correctional Services (D642/2015) [2016] ZALCD 25 (23 November 2016), where Judge Witcher held that the employer’s failure to respond within 30 working days does not translate into an entitlement to temporary incapacity leave. However, the weight of authority points in a different direction. In PSA and Another v PSCBC and Others (D751/09) [2013] ZALCD 3 (Gouvea), the Labour Court dealt with the failure to render a decision within the prescribed 30-day period. The court held at paragraph [20]: “The limited facts of this matter suggest that on 24 June 2008, the third respondent had finalized all investigations and had made a decision which it communicated to Ms. Gouvea by a letter it issued to her on that day. She had to report back to work on 1 July 2008. From the given facts, as I understand them, a report was issued by the Health Risk Manager declining the application for periodical temporary incapacity leave for 4 December 2007 to 30 June 2008. This report sought to have retrospective effect. 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.” The court in Gouvea further held at paragraph [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.”
This matter was considered by the Labour Court in Department of Roads & Transport v PSCBC and Others PR40/14 (15 February 2017), which held that the 30-day period in Resolution 7/2000 is consistent with the objectives of the LRA and that clause 7.5.1 of the Resolution was peremptory. The court confirmed the Gouvea finding that declining applications outside the prescribed period and proceeding to recover remuneration from the employee was in breach of paragraph 7.5.1(b) of the PSCBC Resolution 7/2000.
More recently, the PSCBC award in PSCBC94-24/25 (Simamane v DHET, dated 4 March 2025), involving this same Applicant, addressed an earlier set of TIL applications. Panelist Karen Kleinot found at paragraph 70: “In this matter, the respondent has not complied with the thirty days, neither has the applicant complied with the time frame within which to submit the applications. The failure to adhere to the 30-day frame has negatively impacted the applicant due to the deductions and to the extent that he could not engage with the Respondent in terms of item 10 of Schedule 8 of the Labour Relations Act. Consequently, I find that the Respondent has not complied with Resolution 7/2000 as the Respondent has not investigated the LTIL applications within the thirty working days as stipulated in the resolution.”
Similarly, in the ELRC arbitration award ELRC25-25/26KZN (Simamane v DHET, dated 15 July 2025), Arbitrator Lungisani Mkhize found that the Respondent committed unfair labour practice by processing the Applicant’s temporary incapacity leave outside the 30-day timeframe and awarded compensation of R10,000.00.
Having considered the conflicting approaches, I am persuaded that the interpretation in Gouvea and the subsequent awards represents the correct approach. The purpose of the 30-day period is to ensure that incapacity problems are dealt with in a controlled and orderly manner within the relevant time frames. When TIL is declined, the employee should be required to return to work; leave without pay is instituted. The delay deprives the employee of the opportunity to react timeously to an adverse outcome – whether by returning to work, and or converting the absence to annual leave.
A retrospective refusal has unfair consequences for the employee. The employee, having been conditionally paid whilst awaiting a decision, cannot undo the period of absence. If the underlying medical condition genuinely warranted sick leave, the employee is prejudiced by a late decision that prevents engagement with the treatment regime or workplace issues within the relevant timeframe.
Furthermore, the Applicant raised a significant procedural challenge regarding the authority of the decision-makers. PILIR requires that the final decision on a TIL application be made by the Head of Department or a duly authorised delegate. The Applicant testified that the refusal letters were signed by Mrs Gropp, who is not the Head of Department, and no evidence of written delegation was produced despite the Applicant’s formal request for disclosure of such documentation. The Public Service Act vests the employing authority in the Head of Department. While delegation is permissible, the applicant argued that it must be evidenced in writing. The Respondent led no evidence to establish that Mrs Gropp or any other signatory to the refusal letters had been delegated authority by the Head of Department to make final decisions on TIL applications.
The failure to produce evidence of delegation, despite a specific request for such documentation, warrants an adverse inference. I find that the Respondent has failed to prove that the decisions were taken by a properly authorised decision-maker as required by PILIR.
While the procedural defects are dispositive, it is necessary to address the substantive fairness of the refusals given the Respondent’s defence that the applications were properly declined on the merits. The Respondent’s case, as articulated through Dr Bossert’s evidence, is that SOMA recommended declination because there was insufficient medical information to support the applications. Specifically, SOMA concluded that there was no evidence of objective assessment of functional capacity and no evidence of multidisciplinary intervention.
Paragraph 1.1.1 of Annexure G is couched in peremptory language. It provides that all incapacity applications on psychiatric grounds should be assessed and treated by a psychiatrist.
I accept, for purposes of this analysis, the interpretation advanced by Dr Bossert that paragraph 1.1.1 of Annexure G to PILIR is directed at the employee’s medical pathway and requires that, where incapacity is psychiatric in nature, the employee must have been clinically assessed and treated by a psychiatrist prior to submitting an application for temporary incapacity leave. On her version, the clause establishes a threshold standard for the medical foundation of such applications and seeks to exclude applications grounded on non-specialist opinion.
On the evidence, the Applicant met this threshold. It is common cause that the Applicant was assessed by, and under the care of, a psychiatrist at the time the applications were submitted. The Respondent did not dispute the qualifications of the treating psychiatrist, nor did it suggest that the Applicant’s condition was assessed or treated outside psychiatric expertise. Accordingly, even on Dr Bossert’s interpretation of Annexure G, the Applicant complied fully with the policy requirements governing psychiatric incapacity applications.
Having accepted that the Applicant satisfied the psychiatric assessment and treatment requirement, the Respondent cannot, in the same breath, diminish the evidentiary weight of that psychiatric assessment by subjecting it to a decisional process grounded in general medical evaluation. Once the Respondent accepted that the application was properly founded on psychiatric assessment, it was not open to it to downgrade that assessment by substituting the judgment of a general medical practitioner or health risk manager lacking psychiatric specialisation. To do so amounts to an internal inconsistency in the application of the policy.
Annexure G does not distinguish between “assessment” for purposes of application and “assessment” for purposes of adjudication by the employer. The clause speaks broadly of psychiatric incapacity being “assessed and treated by a psychiatrist”, without confining this requirement to the employee alone or excluding the employer’s evaluative process. Where a policy imposes a heightened standard because of the complexity and sensitivity of psychiatric incapacity, that standard must logically inform both the submission of the application and its evaluation. It would be irrational to require specialist psychiatric assessment at the entry point, only to permit non-specialist assessment at the evaluation stage.
The difficulty with the Respondent’s approach is therefore not resolved by accepting Dr Bossert’s interpretation. On the contrary, once it is accepted that psychiatric incapacity warrants specialist handling, it is therefore reasonable to expect that the Respondent was equally obliged to ensure that any doubt, rejection, or deviation from the treating psychiatrist’s opinion was itself grounded in psychiatric expertise. Though the existence of doubt was rejected by the witness. The Respondent could not lawfully reject the applications on the basis of “insufficient information” without either engaging the treating psychiatrist, seeking clarification, or obtaining an independent psychiatric opinion through the mechanisms provided for under PILIR through SOMA.
The Respondent’s reliance on SOMA assessments conducted by a medical practitioner who is not a psychiatrist represents a misapplication of the very policy it seeks to invoke. If psychiatric incapacity is regarded as sufficiently specialised to require psychiatric assessment and treatment from the employee, it follows that the employer’s assessment cannot be reduced to a general medical review without undermining the purpose of Annexure G. The policy does not permit a bifurcated standard whereby psychiatric expertise is required of the employee but optional for the employer.
However, several concerns arise with SOMA’s assessment process: The Applicant’s condition is psychiatric in nature – major depressive disorder and acute stress reaction. Annexure G to PILIR, which provides guidelines for incapacity assessments on psychiatric grounds, stipulates at paragraph 1.1.1 that all incapacity applications on psychiatric grounds should be assessed and treated by a psychiatrist. Dr Bossert acknowledged that she is a general practitioner, not a psychiatrist.
The Applicant submitted that he signed consent forms authorising the Health Risk Manager to contact his treating psychiatrist to verify information. Clause 7.3.5.1(c) of PILIR provides that the assessment must include, if the employee consents thereto, contact with the treating medical practitioner to verify information where necessary. There is no evidence that SOMA made any attempt to contact the treating psychiatrist, Professor Lasich, despite having consent to do so. However, I accept the averments by Dr Bossert that they were not obliged to do so, and that sufficient and adequate information must be provided with the application by the employees in these applications.
The treating psychiatrist, in the report at B152, specifically addressed the question of multidisciplinary treatment, explaining that treatment by a psychiatrist and psychologist was considered sufficient in the Applicant’s case. This report also stated that the Applicant’s functional capacity to lecture was not thought to be impaired to a degree comparable to dementia. Dr Bossert acknowledged that the Applicant does not have dementia – yet this nuanced clinical opinion from the treating specialist was effectively disregarded.
Dr Bossert’s evidence distinguished between “impairment” (loss or abnormality of body structure or function) and “incapacity” (restriction in ability to perform occupational functions). While this distinction is valid, it cannot justify declining applications without proper engagement with the treating specialist who is best placed to opine on functional impairment in a psychiatric context.
The Respondent’s closing arguments raise several defences which require consideration: First, the Respondent argues that TIL is a privilege, not a right, and is granted at the employer’s discretion. This is correct as a matter of principle – clause 7.1.1 of PILIR makes clear that temporary incapacity leave is not an unlimited number of additional sick days at an employee’s disposal. However, the exercise of discretion must be rational, reasonable, and procedurally compliant. Second, the Respondent relies on the Parexel International case to argue that an employer cannot be expected to tolerate prolonged absence indefinitely. This case concerned incapacity dismissal, not the processing of incapacity leave applications. The principle that an employer may eventually dismiss an employee whose prolonged absence is operationally intolerable does not address the procedural requirements for processing TIL applications within prescribed timeframes. Third, the Respondent suggests that the Applicant can attend dispute proceedings but unable to fulfil his employment contract. This observation, while noted, conflates different types of activity. The ability to participate in a virtual hearing for a few hours differs materially from the ability to sustain full-time lecturing duties. The Applicant’s treating psychiatrist or any other Psychiatrist is better placed than lay observers, Commissioner included to assess functional capacity for work purposes.
Having carefully considered the evidence and submissions, I make the following findings: The Respondent failed to process and determine three of the four TIL applications within the mandatory 30-working-day period prescribed by Resolution 7 of 2000 and PILIR. This failure constitutes a material breach of the collective agreement and policy framework.
The retrospective refusal of TIL applications outside the prescribed timeframe has unfair consequences for the Applicant, who was deprived of the opportunity to react timeously to adverse outcomes. The Respondent’s conduct in relation to the processing and determination of the Applicant’s TIL applications constitutes an unfair labour practice relating to the provision of benefits as contemplated in section 186(2)(a) of the LRA.
The Applicant complied with Annexure G at par 1.1.1 The Respondent, having accepted that compliance, failed to apply the same specialised standard in its own assessment process and instead relied on non-psychiatric evaluation to decline the applications. This inconsistency renders the Respondent’s decisions irrational, unreasonable, and inconsistent with PILIR, and materially contributes to the finding of an unfair labour practice. Accordingly, even accepting Dr Bossert’s interpretation as a starting point, the Respondent’s conduct remains procedurally flawed.
Relief
Section 193(4) of the LRA empowers an arbitrator to determine any unfair labour practice dispute on terms that the arbitrator deems reasonable. The relief must be appropriate to remedy the unfairness established.
I must also consider that the PSCBC award (PSCBC94-24/25) already addressed earlier applications and ordered that the Respondent not make further deductions. However, the respondent may subject TIL applications to a fresh assessment.
I am also satisfied that compensation or solatium is warranted. The Applicant has been prejudiced by the uncertainty and stress occasioned by the Respondent’s failure to process his applications within the prescribed timeframes, and by the ongoing threat of recovery of salary payments. In the comparable ELRC matter (ELRC25-25/26KZN), Arbitrator Mkhize awarded compensation of R10,000.00 for similar procedural unfairness affecting two TIL applications.
In this matter, three TIL applications were affected, representing a longer cumulative period of absence and greater uncertainty for the Applicant. I consider compensation of R15,000.00 (fifteen thousand rand) to be just and equitable in the circumstances and periods concerned.
AWARD
The Respondent, the Department of Higher Education and Training, committed an unfair labour practice by failing to process and determine the Applicant’s, Thamsanqa Simamane temporary incapacity leave applications in accordance with the requirements of Resolution 7 of 2000 and PILIR for the periods 1 October 2024 to 11 December 2024, 6 January 2025 to 28 March 2025, 7 April 2025 to 20 June 2025, and 15 July 2025 to 30 September 2025.
The Respondent is prohibited from recovering, by way of salary deduction or otherwise, any remuneration paid to the Applicant in respect of the periods covered by the aforesaid temporary incapacity leave applications.
The Respondent is ordered to pay the Applicant compensation (solatium) in the amount of R15,000.00 (fifteen thousand rand) by no later than 30 January 2026. Payable into the applicants’ known banking details.