30 October 2025 – ELRC591-25/26WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA MICROSOFT TEAMS VIRUAL PLATFORM
CASE NUMBER ELRC591-25/26WC

In the matter between:

CHANEL DAVIDSON
Applicant

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
Respondent

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

The arbitration was conducted on the MS Teams virtual platform on 13 October 2025. The applicant represented herself on account of her trade union representative being otherwise engaged. The respondent was represented by Mrs. L. Diedericks, its labour relations officer.

THE ISSUE IN DISPUTE

I must decide whether the refusal by the respondent to grant the applicant temporary incapacity leave was unfair.

THE BACKGROUND TO THE DISPUTE

The applicant is a post level 1 educator at the Highbury Primary School in Kuils River.
She had been booked off for reasons of ill health for 5 periods in 2024 and of which the first 2 periods were covered by the Policy and Procedure on Incapacity Leave and Ill-Health Retirement (PILIR).
The respondent had not covered the applicant under PILIR in respect of the last 3 periods.
The applicant contests the fairness of the respondent’s conduct in refusing her temporary incapacity leave in respect of the last 3 periods.
In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.
SUMMARY OF EVIDENCE AND ARGUMENT
Bundles of documents were submitted, to which neither party raised any objections.
The applicant testified under oath on her own behalf. Bulelanni Mapempeni(Mapempeni), the human resources officer responsible for benefits, testified under oath for the respondent.

The evidence for the applicant

After the respondent had informed her that temporary incapacity leave for the last 3 periods had been declined for lack of medical evidence she was advised to lodge a grievance and to attach the necessary medical evidence.
On numerous occasions thereafter she asked A. Bengu (Bengu), to clarify what additional medical evidence is required.
Bengu’s advice was that she obtain a medical report from her treating Psychiatrist.
At a cost of R600.00 she obtained a report from Dr. Suresh and submitted it together with sicknotes.
On 20 August 2025 she received the outcome of her grievance informing her that the decision to decline the last 3 periods was upheld. No reason was given.
She then received a letter from the Health Risk Manager (HRM) on 6 October 2025 that R29,000.00 would be deducted from her salary from 15 October 2025.
The applicant seeks an explanation why her grievance had been declined when she submitted all the medical evidence that was asked of her.
She was told that a medical report would suffice. She has been informed that the respondent is not willing to look at the case again.
Under cross examination she testified that she had forwarded the email request for additional medical information to Dr. Suresh just as Bengu had sent it to her.
She did not know what the contents of the email expressed in the bullet points meant and still does not, so she enquired of Bengu what she could ask Dr. Suresh.
When Bengu then stated that a medical report would suffice she sent that to dr. Suresh and paid R600.00 for the report. Had Bengu referred back to the bullet point in the email she would have enquired more about it.
She did not know that that information specifically was required. That information is still available.
She had not wanted to include information that was unnecessary.

The evidence for the respondent

Mapempeni testified that the application for temporary incapacity leave had been received by the HRM and that it had been assessed on the information provided by the applicant whether she was sick enough not to go to work.
Based on a common understanding the declination meant that the applicant’s leave will be considered unpaid.
All the applications for temporary incapacity leave were declined on the basis of insufficient independent medical evidence submitted. The applicant was then entitled to lodge a grievance.
The incapacity leave is not a right but is at the discretion of the respondent and applies once the 36 day leave cycle over 3 years of the employee has expired and must be submitted within the time frame therefor. It is not an extension to an employee’s right to sick leave but a privilege afforded the employee to be exercised at the discretion of the employer.
It is therefore incumbent on the employee to submit all the necessary medical evidence in support of her claim.
The respondent will send a letter informing the applicant of the documents required as it did on 6 May 2025.
The information must be sufficient to support the period in annexure B of PILIR.
Under cross examination he confirmed the need for a report. The HRM scrutinises the report to see if it has enough information.
The applicant must take the letter from the respondent back to the doctor.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

This matter is clearly one in which the applicant alleges unfair conduct of the respondent in that it had failed to grant her temporary incapacity leave.
An overall conspectus of the applicant’s testimony suggests that she had wanted to inform Dr. Suresh as to what the medical report should contain.
In this regard I find it odd that the applicant would consider a medical report as sufficient information required without reference to the content such medical report should contain.
I find it odd because there is no absolute definition of a medical report in respect of what it must contain.
What a medical report must contain is sufficient information to enable it to support the end which the person to whom it refers wants to achieve. In this instance to have the HRM decide that the information in the medical report justifies the granting of the temporary incapacity leave applied for.
This brings me to the question of the consent that the applicant testified she had to give Dr. Suresh for the purpose of the compilation of the medical report. There is no evidence before me suggesting how this consent had been given and for what purpose specifically.
Notwithstanding, it is clear from the email dated 6 May 2025 that indicated what it was expected the medical report should contain, was more than what ultimately it did contain. The medical report contained a diagnosis and medical notes stating when the applicant was not fit for duty.
On the testimony of the applicant, it is clear that she had not forwarded the respondent’s email of 6 May 2025 to Dr. Suresh, notwithstanding the fact that she had received the email before the medical report, which was dated 9 May 2025.
It is clear, as alluded to by the respondent, that much of the language contained in the email of 6 May 2025 was of a medical nature and ought to have been forwarded to Dr. Suresh by the applicant.
Notwithstanding such language, the email is sufficiently clear for the applicant to understand that more information is required than merely a diagnosis and the aforesaid medical notes.
The applicant’s testimony that she had forwarded the letter from Bengu dated 25 April 2025 to Dr. Suresh demonstrates a selectiveness by the applicant in what information to forward to Dr. Suresh.
The applicant knows or ought to have known that it is for Dr. Suresh to decide and for Dr. Suresh therefore to understand the request of the respondent and therefore ought to have forwarded the email of 6 May 2025 to Dr. Suresh.
It is in fact very clear in the email of 6 May 2025 what the requirements were in order for the HRM to decide whether or not to grant the applicant the temporary incapacity leave.
In these circumstances where a standard of the utmost good faith applies, the applicant in this matter failed to attain such standard and failed to place the respondent in a position to take a decision that would favour the applicant. This she had failed to do because she had selected what information to request from Dr. Suresh.
The corollary to this is that she had selected what information not to request from Dr. Suresh viz. that referred to in the respondent’s email of 6 May 2025.
The email of 6 May 2025 clearly communicates what medical information the respondent expected the applicant to furnish and in detail.
For the applicant to offer as a reason for not doing so that she did not understand from the email of 6 May 2025 what was required is unacceptable and strange.
As stated elsewhere herein it is incumbent on the applicant to furnish the relevant medical information. This was also the testimony of Mapempeni. The applicant had clearly failed to furnish the relevant medical information.
Fundamentally the disclosure required by the applicant must be sufficient for the HRM to understand why the applicant given her diagnosis cannot perform her duties. This is fundamental to the granting of the temporary incapacity leave and consequently for the respondent to be able to conclude that the applicant be paid her salary during such leave of absence.
It is clearly incumbent on the applicant to show that in the circumstances of her diagnosis she is unable to work. This the applicant clearly failed to do.
This application for temporary incapacity leave is to do with one being paid money/salary for not doing the work (quid pro quo) in circumstances where one cannot perform one’s duties (quid pro quo) and where the employer needs one’s justification for not doing so. It is a circumstance where it is imperative that one gives the explanation therefore together with its justification.
It is also not a right through an extension of your normal leave cycle of 36 days leave over a period of 3 years. It is a privilege afforded an employee through the PILIR.
A diagnosis and medical certificates only cannot suffice for this purpose. These do not of their own inform as to why the applicant cannot perform her duties.
It is to be noted that the information the respondent furnished to the applicant accords generally with that found in clause 7 of the PILIR, which information is readily available to the applicant, the respondent and the applicant’s trade union.
The conduct of the respondent in declining the application for temporary incapacity leave cannot therefore be conduct as provided for in section 186(2)(a) of the LRA and therefore cannot be said to be an unfair labour practice.