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30 September 2025 – ELRC1217-24/25KZN

IN THE ELRC ARBITRATION
BETWEEN:

NUPSAW obo Shelembe, Zanele Cynthia “the Applicant”
And
THE HOD: KWAZULU-NATAL DOE “the Respondent”

ARBITRATION AWARD

Case Number: ELRC1217-24/25KZN

Date of arbitration: 25 March 2025, 03 June 2025, 16 July 2025, 25 August 2025 & 29 August 2025

Date of Award: 23 September 2025

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

DETAILS OF HEARING AND REPRESENTATION

  1. The arbitration commenced on 29 August 2025 online via a zoom meeting.
  2. The Applicant, Mrs. Zanele Cynthia Shelembe was represented by Mr. Nkosiphi Mnyandu an official of the NUPSAW union whereas the Respondent, the Department of Education- KwaZulu Natal was represented by Mr. Sinethemba Daniso, its Employment Relations Officer.
  3. The proceedings were digitally recorded and I also made handwritten notes.
  4. The services of an interpreter were not required.

ISSUE TO BE DECIDED

  1. I am required to determine whether the Respondent committed unfair labour practice or not as envisaged in section 186 (2) (b) of the LRA when it refused the Applicant’s temporary incapacity leave and deducted an amount of R2441-10 for the two days of 14 and 15 September 2023. The Applicant prayed for the relief of reimbursement of the two days in question and 12 months compensation for alleged unfair labour practice as per section 193 (4) of the LRA.

BACKGROUND

  1. The Applicant is employed on a permanent basis as an educator with persal number 61790737 at the Northdale Umngeni Circuit of the Respondent. The Applicant fell sick until she was admitted to hospital to the point of exhausting her sick leave. She then applied for temporary incapacity leave including on 14 to 15 September 2023 amongst other days.
  2. The Respondent provisionally paid the Applicant for the 14th to the 15th of September 2023 leave days subject to approval of her temporary incapacity leave application. On 03 April 2024, the Respondent informed the Applicant that her temporary incapacity leave days were not approved. The Applicant then lodged a grievance with the Respondent on 15 May 2024.
  3. On 28 November 2024, the Respondent sent the Applicant a Recovery of Payment letter and an acknowledgement of debt letter for her to sign. The Applicant was given 21 days from the date of the letter to make representation to the Respondent with regards to the deductions from salary.
  4. On 15 January 2025, the first deduction was effected. Aggrieved by the deduction, the Applicant then referred an unfair labour practice dispute relating to benefits to the ELRC on 04 February 2025.
  5. The ELRC then scheduled the matter to be conciliated but it remained unresolved. The ELRC then scheduled the matter to be arbitrated before me on 25 March 2025 but the Respondent raised a point in Limine relating to the Jurisdiction of the ELRC to entertain the matter. I issued a Jurisdictional Ruling on 30 April 2025.
  6. The ELRC then set the matter for arbitration on 03 June 2025 but it was postponed due to the Respondent Representative having fallen ill. The ELRC then set the matter for arbitration on 16 July 2025. The Applicant case started with the Applicant’s evidence in chief being heard but the Respondent could not cross examine her due to a power outage in Pietermaritzburg CDB.
  7. The ELRC then set the matter for arbitration on 25 August 2025 and again, the matter was postponed as the Respondent Representative had to attend to his child who was not well. The matter was rescheduled to 29 August 2025 as shown in paragraph [1] of this award.

SUMMARY OF EVIDENCE AND ARGUMENTS

  1. As per section 138 of the LRA, I only summarized the evidence which I regarded to be relevant to the dispute and which helped me to reach my decision.
  2. Respondent’s Bundle A with 70 pages
  3. Applicant’s Bundle B with 16 pages

The Applicant’s Case

  1. The Applicant Union Representative, Mr. Nkosiphi Nyandu, an official of the NUPSAW Union called the Applicant as his witness. The Applicant, Mrs. Zanele Cynthia Shelembe testified under oath as follows: On 15 May 2024, she filed a grievance form with regards to the late response on the refusal of her temporary incapacity leave and that an HRM that did not access her application responded. She further stated that the deduction did not comply with Section 34 (1) of the BCEA. On the grievance form, she stated that she became aware of the refusal by the Respondent on 03 May 2025. On 20 August 2024, she received a letter from the Respondent indicating that her temporary incapacity leave for 14 and 15 September 2025 had been refused.
  2. When she received the recovery letter on 20 August 2024, she had not been called to court to defend the deduction. The period from 15 September 2023 to 20 August 2024 was 11 months. The Applicant had been given 21 days from 28 November 2024 to make representations with regards to the ,matter by the District Director. However, she only received the recovery letter on 10 December 2024 12 days after its issue date. She did not get the 21 days referred to in the recovery letter to make representations. The Respondent just wanted to deduct money from her salary, It did not get a court order to do so.
  3. The system indicator showed that the Respondent had already started implementing a deduction on 01 December 2024 at 12h13 before the recovery letter even got to the Applicant.
  4. Clause 13.1 of the PILIR policy states that if an employee is not satisfied with the decision of the Employer, she may lodge a grievance in terms of the rules of the Public Service Commission. Clause 13.5 of the PILIR policy stated that until the grievance has been resolved, the Respondent may not implement its decision. The Applicant’s grievance was not resolved. She was shocked by the recovery letter.
  5. Clause 7.2 of the PILIR policy categorizes the Applicant’s leave as short term and 7.2.5.2 of the PIIR policy states that if the employee consents, the Respondent could contact the medical practitioner to verify. The Respondent did not contact her Doctor.
  6. Clause 7.2.9 of the PILIR policy and Clause 7.5 (b) of PSCBC Resolution 7 of 2000 states that the Employer must within 30 days after receipt of application form and medical certificate, approve or refuse the temporary incapacity leave. The Respondent did not respond within 30 days to the Applicant.
  7. Clause 9.3 of the ELRC Resolution 7 of 2001 states that the HOD may require the educator to obtain a second opinion before granting approval of additional sick leave. The HOD did not subject the Applicant to a second opinion of a Specialist.
  8. She sought reimbursement of two days leave deducted and compensation of 12 months of her salary.
  9. When she applied she was advised that Thandile HRM was going to access her application. However, in the Respondent’s letter, Alexander Forbes was quoted at the HRM. Thandile HRM left in 2018. The Respondent sent her application to Thandile HRM who had left.
  10. Under cross examination, the Applicant testified as follows amongst others: In the temporary incapacity leave outcome, the Respondent referred to Thandile HRM whereas it left in 2018. Receipt of her application was not acknowledged in 5 days. Alexander Forbes responded to the Respondent and not to the Applicant on the outcome. She denied that the HRM had 20 days to respond to the Respondent and insisted that the 30 days was the time within a response must be given to her by the Respondent.
  11. The deduction by the Respondent was effected without her permission and the following of a proper procedure. She lodged a grievance as per clauses 13.1 and 13.4 of the PILIR policy. However, it came out that she did not submit any new medical documents evidence as per clause 13.4 of the PILIR policy. Clause 13.2 of the PILIR policy stated that the Employer needs new medical evidence to defend its decision as per section 25 of PSA and the cost is for the Employer’s account
  12. On the recovery of overpayment letter dated 28 November 2025, it was stated that the Applicant had 21 days to make representations on the issue. The Applicant did not make representations. She only received the letter on 10 December 2024. She denied that she had enough time to make representations.
  13. The time to make representations was just a formality as the Respondent had already decided to deduct her money.
  14. In re-examination, the following came out amongst others, The Applicant lodged a grievance and attached the same medical evidence. The Respondent did not respond to her grievance. Clause 13.5 of PILIR policy stated that the Respondent could not affect the deduction until the grievance lodged was resolved.
  15. She received the overpayment recovery letter on 10 December 2024 and had 3 days to closure of the school on 14 December 2024.
  16. The submissions made in the Applicant’s closing arguments were received and considered in this award.

The Respondent’s Case

  1. The Respondent Representative, Mr. Sinethemba Daniso called his first witness, Ms. Melisha Peters who testified under path as follows: She had 26 years in Finance and 4 years in HR. She was one of the Respondent’s Accounting Clerks.
  2. The Debt letter addressed to the Applicant stated terms and means of recovery of an overpayment and that the Applicant ha days to make representations.
  3. The recovery was done as temporary incapacity leave was rejected for 14 to 15 September 2025. The 21 days ran from 28 November 2024. If the Applicant received the letter on 10 December 2024, then the 21 days ran from that day. The Applicant could have made representations whilst schools were closed. She only did not work during public holidays.
  4. On the 1st of December 2024, Finance put the recovery on the system. If there are representations, the system entry can be amended or stopped. They had until 03 January 2025 to amend the system entry. Thus, the Applicant was given more than 21 days to make representations. That is why the recovery was effected on 15 January 2025. All procedures were followed.
  5. The BCEA allows for the Respondent to deduct without the Employee’s consent. From 10 December 2024, the Applicant had 27 days to 03 January 2025 and 38 days to 15 January 2025.
  6. The Respondent followed all the necessary procedures in recovering the debt.
  7. Under cross examination, Ms. Peters testified as follows amongst others: In total, she had 30 years in the Respondent’s service. Her workstation was at the Old Mutual Building at Umgungundlovu. On the day of the hearing, she was working from the Pholela Circuit. The debt was issued because Alexander Forbes rejected the Applicant’s leave.
  8. The Applicant had an opportunity to lodge a grievance with the Labour Section by filling a form and attaching new medical reports. From 28 November 2024, the 21 days ended on 15 December 2024. They allow clients an opportunity to lodge up to 21 days out of compassion. Had the Applicant responded within 21 days they would have amended the payment recovery request on the system. They were not under obligation to give a grace period. Had the Applicant came to the office, they would have agreed on an amount to deduct.
  9. The Applicant received the recovery letter 3 days before school closure. The Respondent had skeleton staff to deal with representations. Section 34 of the BCEA allows the Respondent to deduct legal deductions without consent. The overpayment does not fall under those needing a Court Order. She sent a 2nd letter to the Applicant for extra information.
  10. Section 38 (1) (c) (i) of PFMA allows the Respondent to deduct legally from employees.
  11. The Respondent Representative called his 3rd witness, Ms. Xolisile Mtshare, the Acting Principal Personnel at HRSS (Leave Section) who testified under oath as follows: She joined the Respondent in 1996. The outcome letter on the Applicant’s leave application was a proforma letter. Thandile HRM contract expired in September 2022. At the time the Applicant applied for leave, Alexander Forbes was the HRM and they assessed the leave application for the period of 14 to 15 September 2023.
  12. The reason for two HRMs being quoted on the same outcome letter was an oversight in the drafting of the proforma letter. They change the outcome from the HRM and the Employee information on the standardized letter.
  13. The reason the application was refused was that the HRM was unable to determine that the severity of the condition was significantly incapacitating as to have prevented the employee from performing her vocational duties.
  14. The leave section of the Respondent did not receive a grievance letter from the Applicant.
  15. Under cross examination, Mtshare testified as follows amongst others: The Respondent received information from the Applicant and sent it to Alexander Forbes. The outcome from Alexander Forbes is passed on to the employee.
  16. She reiterated that the Respondent’s Leave Section did not receive the grievance letter from the Applicant. She confirmed that Thandile HRM contract expired in September 2022 and that the Applicant’s leave application was assessed by Alexander Forbes.
  17. In re-examination, she reiterated that she did not receive the grievance letter from the Applicant. If an employee submits a grievance to the Respondent’s Labour section, they need to submit it to the Respondent’s Leave Section as well as it is the Leave Section that attends to it and sends it to the HRM.
  18. The submissions made in the Respondent’s closing arguments were received and considered in this award.

ANALYSIS OF EVIDENCE AND ARGUMENT

  1. In terms of clause 9 of ELRC Resolution 7 of 2001, which has been incorporated and duplicated in clause B12 of PAM, the Head of Department is granted discretion to grant paid temporary incapacity leave to an educator who has exhausted all his sick leave. Such discretion is of such a nature that courts and tribunals may not interfere with it, unless it has been exercised in an irrational, capricious or arbitrary manner or male fide. No court or tribunal will be allowed to interfere until such time as the Head of Department has actually exercised his discretion or refused to exercise his discretion. In this case, the HOD has exercised this discretion and the Applicant is aggrieved thereof.
  2. Section 23 (1) of the 1996 Constitution of the Republic of South Africa read together with sections 185 and 186(2) of the Labour Relations Act, 66 of 1995 provides that everyone has the right to fair labour practices.
  3. The true dispute before me is whether the Respondent committed unfair labour practice or not by refusing the Applicant’s application for temporary incapacity leave and recovering the amount equivalent to two days being R2441-10. The relief sought is a declaration that the Respondent was unfair and compensation of 12 months of the Applicant’s salary as remedy. It goes without saying that for me to make such a determination, I will have to determine if the Respondent applied the Policy and Procedure on Incapacity & Ill-Health Retirement and/ clause B12 of PAM which is an issue within the main dispute.
  4. Jurisdiction is determined on the basis of the pleadings and not the substance of the merits. The approach of the Constitutional Court in Gcaba v Minister for Safety & Security (2010) 31 ILJ 296 (CC); (2010) 31 ILJ 1813 (LAC) adopted by the Constitutional Court pointed out that what ultimately determined the jurisdictional divide was the manner in which the dispute was pleaded (i.e. the cause of action relied upon) and the nature of the relief sought.
  5. In the case before me, Shelembe is challenging the decision of the Respondent to refuse her temporary incapacity leave application and the ELRC is the right tribunal to make a determination.
  6. Chapter G.4.3.4. of the Personnel Administrative Measures states that should the grievant(s) not be satisfied with the outcome, he or she may register a formal dispute with the General Secretary (GS) of the ELRC in terms of the provisions of the ELRC’s Constitution. The Applicant submitted that she lodged a grievance with the Respondent on 15 May 2024 but there was no response. Instead the Respondent went on to implement deductions as from 15 January 2025 when the expiry of her 21 days to make representations fell into the December 2024 festive season.
  7. The Applicant also alleged that an incorrect Health Risk Manager assessed her application or no such assessment took place as the appointed Health Risk Manager at the time did not respond to her application but another that was not appointed. This is a substantive allegation challenging the declining of the Applicant’s temporary incapacity leave application.
  8. The Applicant, Ms C Z Shelembe applied for Incapacity Leave for the period 14.09.2023 to 15.09.2023. Her application was conditionally granted and reviewed by a Health Risk Manager, who did not recommend the approval due to the inability to confirm that the employee’s condition was sufficiently incapacitating to prevent the applicant’s performance of duties.
  9. The Applicant was formally informed in writing of the outcome of her leave application, the reason for non-approval and the procedure to follow if she disagreed with the decision. She was also advised that she could lodge a grievance with both the Respondent’s Labour Section and Leave Section. This was done through a letter to the Applicant from the HOD dated 03 April 2024 provided in page 2 of the Respondent’s bundle. The Applicant did not dispute receiving this letter.
  10. The Applicant admitted that she did not file a grievance to the Respondent’s Leave Section as stipulated in the letter in question. Moreover, the Applicant did not provide new medical information with her grievance form as stipulated in clause 13.4 of the PILIR policy. Ms. Mtshare from the Respondent’s Leave Section testified that her section did not receive a grievance form and any new medical information from the Applicant. The Applicant could not provide proof that she did so. This prevented the Alexander Forbes HRM from assessing her leave application again. This meant that the decision for the Respondent to refuse the Applicant’s temporary incapacity leave stood. The next step would be to recover the provisionally granted leave after converting it to unpaid leave.
  11. The Respondent then issued a letter dated 28 November 2024 to the Applicant informing her of the debt incurred and the Respondent’s intention to recover the money owed. The letter clearly stated that the Applicant had 21 days to make representations regarding the debt.
  12. The Applicant testified that she received such a letter on 10 December 2024 three days before she closed for the December school holidays. However, the Respondent witness, Ms. Peters testified that the letter informed the Applicant that she could make representation at the Respondent’s Finance offices throughout the December festive season as there is skeleton staff to handle such issues then.
  13. Peters also testified that it was a norm for Finance to load the debt recovery plan on the system as it was possible to amend it or remove it before the cutoff date of 03 January 2025 for the 15 January 2025 pay. She further testified that even though the Applicant received the letter on 10 December 2024, she could still enjoy the 21 days afforded to her prior to the cutoff date for the 15 January 2025 pay date. The Applicant failed to make representations as stipulated in the letter she received on 10 December 2025.
  14. The Applicant testified that it was unlawful for the Respondent to deduct money from her salary without her written consent or a court order. The question is how should the Respondent recover refused temporary incapacity leave that had been provisionally granted whilst the application was being assessed. If the decision not to grant the leave is finalized and the Applicant unsuccessfully challenged the decision or failed to challenge the decision as in this case, it would pose a great dilemma for the Respondent if it needed the Applicant’s written consent each time. If the Employees refuse, it would cost a significantly high amount of money to secure a court order each time as envisaged in Section 34 (1) (b) of the BCEA.
  15. The question is whether Section 34 (5) (a) of the BCEA is applicable in this matter as it refers to an exception to requiring an employee to repay any remuneration if the overpayment previously made by the employer resulted from an error in calculating the employee’s remuneration. In this case, there was no error but the leave was provisionally granted pending approval. However, it was not approved. This does not make the overpayment due to an error.
  16. Section 34 of the BCEA provides in subsection (1)that An employer may not make any deduction from an employee’s remuneration unless—
    (a) Subject to subsection (2), the employee in writing agrees to the deduction in respect of a debt specified in the agreement; or
    (b) The deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.
    In this case, the deduction is permitted in terms of a law. Firstly, under common law, statute law and an employment contract, there is an obligation on the employee to be at work and to actually work in order to be remunerated. In the absence of an approved temporary incapacity leave for the days in question, the no work no pay common law principle applies.
  17. There is jurisprudence to be considered relating to matters such as this one like it was done for example in Sibeko v CCMA (2001) JOL 8001 (LC) Para 6 where the Court dealt with a situation involving overpayment Educator and whether a deduction could be done without his consent.
  18. In terms of part B12.2.2 of the PAM, if an Educator contemplated in part B12.1 of the PAM has been overpaid or received any such other benefit not due to him/her, part B12.2.2.1 of the PAM states that an amount equal to the amount of the overpayment will be recovered from him or her by way of the deduction from his/her salary in installments as may be determined by the employer, with due regard to the applicable Treasury Instructions by way of legal proceedings, or partly in the former manner and partly in the latter manner. This applies to the case of the Applicant as when she was paid, it was anticipated that her temporary incapacity leave would be approved but when it was not approved, the paid salary became due to the Respondent. If an educator does not work on a day on which no leave has been granted, she is not entitled to remuneration and any remuneration paid to her for that day is an incorrect overpayment of salary.
  19. In Stein v Minister of Education and Training and others1 [2021] JOL 53504 (LC) The Court dealt with a situation where an employee was absent from work without leave, where after the employer deducted the overpayments that were made to him in respect of those days. The Court said
    “Where an employee absent himself from work and fails to submit the leave forms in accordance with the policy, the employer is entitled to withhold payment and in instances where he had already effected it, he or she should be allowed to recover it without the consent of the employee. When the department made payments it did so in firm belief that the employee will account for his absence from work. When he failed submit the forms, the amounts paid in respect of those days constituted an overpayment and susceptible to recovery within the provisions of section 34 (5) in that it was made in circumstances where it was not due i.e. in error….In the circumstance, I have no hesitation in concluding that the employer was justified to deduct the amount paid to the Applicant for those days he did not work.” The Applicant’s scenario is not exactly identical to the case cited as there was no error but the refusal of the leave necessitated a legal recovery of the amount that was provisionally paid.
  20. This principle was confirmed in Holburn v Member of the Executive Council, Department of Education and another (P603/09) [2011] ZALCPE 12 (9 November 2011). The deductions by the Respondent ought to have been known by the Applicant when she was notified that her leave application was unsuccessful due to the warning in paragraph 4 of Annexure B (temporary incapacity leave form long period) that declined leave would be converted to annual leave or unpaid leave.
  21. The Applicant had onus to prove that there was unfair labour practice committed by the Respondent. There was no evidence that the Policy and Procedure on Incapacity leave and Ill- Health Retirement was breached as submitted. The mistake of the wrong HRM name used in the outcome letter was satisfactorily explained. The Applicant did not demonstrate how the response provided greater than the statutory 30 day period prejudiced her.
  22. The Respondent provided oral and documentary evidence in support of its version and succeeded to show that the Applicant failed to comply with the Respondent’s letters and PILIR policy by not filing its grievance together with new medical information. This caused the refusal of the leave to stand. Thus, I am persuaded that there was no unfair labour practice committed by the Respondent.

Award

  1. There was no unfair labour practice relating to benefits committed by the Respondent, the HOD: KwaZulu-Natal DOE against the Applicant, NUPSAW obo Shelembe, Zanele Cynthia.
  2. Accordingly, the Applicant’s case is dismissed

L Mkhize
Arbitrator 23 September 2025
ELRC1217-24/25 KZN