IN THE MATTER BETWEEN :-

NAPTOSA obo NARAINSAMY G APPLICANT

AND

DEPARTMENT OF EDUCATION – KZN RESPONDENT

ARBITRATOR : P. JAIRAJH

DATE OF AWARD : 04 SEPTEMBER 2017

Applicants’ representative : MS N. JORDAN
Telephone : 082 333 5825
Fax : 086 540 1917
Email : mmjordan2001@yahoo.com

Respondent’s representative : MR I. PILLAY
Telephone : 083 3500 721
Email : Indran.Pillay@kzndoe.gov.za

ARBITRATOR’S AWARD

DETAILS OF HEARING AND REPRESENTATION
[1] The matter was set down for arbitration hearing on the 4 May 2017 and at the very outset the respondent raised a point in Limine in respect of Council’s jurisdiction to arbitrate this matter. Both parties made oral submissions and after hearing the party’s submissions, I attended to make a written ruling that Council had jurisdiction to arbitrate this dispute. The arbitration thereafter proceeded on the 8 August 2017 with both parties closing their case. The parties, at the conclusion of proceedings, elected to submit written closing arguments. Closing arguments were received from the Applicant on the 11 August 2017 and from the Respondent of the 16 August 2017.
[2] Ms M. Jordan, a NAPTOSA representative represented the applicant and Mr I Pillay represented the respondent..

BACKGROUND TO THE DISPUTE
[3] The matter was referred as an unfair labour practice in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended, in that respondent did not pay the applicant temporary incapacity leave for 19 days that applicant alleges she is entitled to.
[4] The applicant contends that the Employer failed to make a decision within 30 days of her application for temporary incapacity leave.
[5] The respondent contends that temporary incapacity leave is granted at the discretion of the Employer.

ISSUE TO BE DECIDED

[6] Whether the respondent committed an unfair labour practice related to temporary incapacity leave benefits.

SURVEY OF EVIDENCE AND ARGUMENT

DOCUMENTARY
[7] The applicant submitted a bundle of documents which was marked as Bundle “A” and used as a common bundle.

APPLICANT’S SUBMISSIONS
The salient points of Ms Goonabigum Narainsamy’s evidence are as follows:-

[8] She referred to HRM Circular No, 49 of 2009, Implementation of Revised Determination on leave of absence of educators in terms of PSCBC Resolution 1 of 2007, clause 5.10.11, on page 23 and contended that the respondent had not responded within 30 days.
[9] According to the DPSA policy the employer must within 30 working days make a decision and the employer in this regard does not have an option.
[10] She applied for sick leave on the 14 October 2014, as this was the day she had returned to school, filled in Annexure B, and then sent it to her Orthopaedic Surgeon as part of it had to be completed by him. Once she received it she submitted it to the Department.
[11] The Department’s first response to her is dated the 7 April 2015, was received by the CMC on the 11 May 2015, which was approximately 209 days late.
[12] She contended that the department had not applied its own policy and she was treated unfairly as a result of this excessive delay.
[13] She referred to page 18, the leave record and averred that the temporary incapacity leave of the 19 days was captured on the 21 July 2014.
[14] The date the doctor deemed her fit for work was the 14 August 2014.
[15] She consented to the Employer to authorise any medical practitioner, hospital or institution to assess her knees. The department did not exercise this option to send her to a doctor of their choice and if sent to a consulting doctor, evidence of her disability would have been evident.
[16] She referred to page 106 of the bundle and contended that she complied with the additional physiotherapist’s report and the doctor was a specialist orthopaedic surgeon.
[17] She referred to page 102 and contended that she did not agree with the PILIR committee’s recommendation of a recovery period of 8 weeks post-surgery.

Under cross – examination she testified that:
[18] She knew that she had 36 days in a 3 year cycle and anything beyond the 36 days was at the discretion of the Employer.
[19] She had 84 days annual leave and the department offered to offset the 19 days off her annual leave or a monthly deduction but she did not consent to this.
[20] After she received the letter from the department declining her application and informing her of their intention to recover the amount of R25 922.98, she submitted the physiotherapy report and lodged a grievance. She thereafter received a response informing her that her application was not approved as the orthopaedic surgeons report was not submitted and insufficient information was submitted.
[21] She was admitted to hospital and had the operation on the 14 May 2014, as indicated on page 37.
[22] The medical certificate on page 36 was generated when she went in for her 6 weeks check-up in July 2014.
[23] She was referred to page 65, point 4 and agreed that the temporary incapacity leave which was captured on persal was conditionally granted by the employer.
[24] She agreed that based on the Health Risk Manager’s outcome/opinion the employer makes a determination.
[25] She was referred to page 22, clause 5.10.7 and stated that she did not submit the application according to this clause as at that stage she was unaware of this clause.
[26] She agreed that she applied for temporary incapacity leave 2 months after she returned to work, which application is dated 14 October 2014.
[27] She could not answer as to why the doctor stated that her recovery was 6 weeks to 3 months.

Under re – examination she testified that:
[28] She chose to apply for temporary incapacity leave.
[29] She did not think it was fair for the department to take her capped leave.

RESPONDENT’S SUBMISSIONS
The respondent closed his case and elected to submit closing arguments.

APPLICANT’S CLOSING ARGUMENTS
The salient aspects are recorded below as follows:-

[30] The constitution of the PILIR Advisory Committee is questionable. A non-medical committee is making a recommendation on a period termed an “excessive duration”. Any opinion raised on her recovery period is highly prejudicial, especially as none of the members are medical professionals.
[31] The application was completed by the treating specialists – orthopaedic and physiotherapeutic. The District requested the completion of Annexure B late – as only after the exhaustion of the 36 days of Normal Sick Leave – can one apply for Temporary Incapacity Leave. When requested for a more clinical physiotherapist report, the employee complied – at her own expense.
[32] Reference page 18 of the bundle, this capture of leave exhausted the applicants normal sick leave cycle and Annexure A (Short periods) of the Section 5.10.3 (i). This indicates that the Employer was aware of the applicant’s absence.
[33] The applicants leave forms were submitted in respect of the requirements of HRM Circular 49 of 2009 as per section 5.10.3 (i) and 5.10.3 (ii) in respect of her medical condition and as per the request of the Department.
[34] In the matter PSA obo Gouvea v PSCBC and two others, LC 2013, the court found that the employees cannot be subjected to retrospective leave without pay when an application for temporary incapacity leave is declined. Leave without pay can only be implemented in cases where the employer takes a decision to decline the application for incapacity leave, within the period applied for and then only if the employee was instructed to return to work and the employee fails to do so. The employer may not recover salaries with retrospect effect. (The letters of intent to recover monies through deduction of capped leave benefit – or monthly payment). In this case the applicant was only informed 209 day later that the leave was declined.
[35] The consequence of retrospect effect is that it amounts to an unreasonable and arbitrary exercise of discretion with unfair consequences on the employee – Gouvea. In line with this case the respondent’s decision to decline the leave application was not made with due diligence and their contractual obligation in line with the PILIR. The employee had by this stage returned to work and therefore does not owe the employer any money.
[36] The applicant has been unfairly treated as a result of the respondent’s inefficient administration and failure to abide by an agreed upon policy. The applicant is the one who suffers financial prejudice, emotional distress, as a result of this.
RESPONDENT’S CLOSING ARGUMENTS
The salient aspects are recorded below as follows:-

[37] In her application for temporary incapacity leave (A87) her doctor states that the incapacity will be plus minus 6 weeks to three months. The health risk manager states in its report “The employee applied for 19 days temporary incapacity leave for the period 21 July 2014 until 14 August 2014 due to a right total knee replacement which she had undergone on 20 May 2014. The employee utilised normal sick leave and a school holiday occurred during her recovery period. She was thus absent from work for almost 9 weeks after surgery prior to the period in question. The period applied for was not advised due to an excessive duration. Adapted duties should have been possible 6 weeks after surgery” (A106).
[38] “An educator must submit an application for temporary incapacity leave personally or through a relative, fellow employee/educator or friend within 5 working days after the first day of absence” (A22 item 5.10.2). This timeframe was not complied with. The determination whether to grant the leave or not could therefore not be made in terms of the relevant timeframes of Circular 49 of 2009 (A19) or the PILLER policy.
[39] If an educator fails to submit an application within the period above the sick leave period will be covered by unpaid leave. (A22 item 5.10.8). The employee is a Deputy Principal of a school she ought to know these provisions. It is therefore submitted that because of her late submission of her application, she is only entitled to unpaid leave as per the circular.
[40] There was no orthopaedic surgeon report submitted with the grievance. It is submitted therefore that it was impossible to grant that leave on the information submitted. The employee therefore could not prove that she was incapacitated or could not perform alternative duties –her illness was over at the time of submitting the application. Under these circumstances the granting of unpaid leave was therefore fair to both the employer and the employee.
[41] The employee was allowed to supplement her papers and resubmit to the Health Risk Manager – unfortunately this submission was woefully inadequate on her part. It is submitted the employer was fair to her and acted fairly despite it not being obliged to consider her application outside the timeframes.

ANAYLSIS OF EVIDENCE AND ARGUMENT
I have considered all the arguments of the parties as well as the documentary evidence submitted.
[42] The applicant contends that the Respondent committed an unfair labour practice in respect of failing to grant her 19 days temporary incapacity leave.
[43] In terms of section 186(2) (a) of the Labour Relations Act 66 of 1995, “unfair labour practice means any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”
[44] In Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the court held at par [79] “A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”
[45] In Apollo Tyres South Africa (Pty) Ltd V Commission of Conciliation Mediation and Arbitration & Others [2013] 5 BLLR 434 (LAC), the Court held that the proper approach is to interpret the term “benefit” to include a benefit to which the employee is entitled (ex contractu or ex lege, including rights judicially created) as well as an advantage or privilege which the employee has been offered or granted in terms of a policy or practice subject to the employer’s discretion.
[46] It is common cause that the applicant exhausted her 36 days sick leave cycle and only applied for the temporary incapacity leave on the 14 October 2014, approximately two months after she returned to work.
[47] It is common cause that her application was submitted to Health Risk Manager and the 19 days of temporary incapacity leave was not approved.
[48] It is common cause that the Respondent notified the Applicant about the outcome of her application outside the 30 day prescribed period.
[49] The applicant argues that this inaction on the part of the employer has prejudiced the applicant.
[50] I find it hard to believe that the applicant did not know of that she had to comply with the requirement of Clause 5.10.7 of HRM No. 49 of 2009.
[51] I agree with the Respondent that Annexure B, item 4 clearly sounds a warning to the applicant.
[52] The respondent had clearly indicated to the applicant that detailed medical reports were required.
[53] The applicant’s seeks to lay blame at the respondent’s door for not complying with an outcome within 30 days of her application but the applicant by her own admission failed to apply for the temporary incapacity leave within the 5 day prescribed period and only submitted her application two months after she returned to work.
[54] Her medical report which is undated was generated only when she went for her medical checkup in July 2014.
[55] I agree with the respondent that the PILIR policy places obligations on both the employer and employee.
[56] It is clear that the applicant failed to follow the due process of the application for temporary incapacity leave.
[57] The applicant bears the onus to establish that an unfair labour practice was committed against her.
[58] For reasons above I find that the applicant has failed to discharge the burden of proof on a balance of probabilities that the respondent subjected her to unfair labour practice.
[59] As a consequence of the above I cannot find that the respondent committed an unfair labour practice in respect of benefits.

AWARD
[60] The applicant did not discharge the onus of proving an unfair labour practice.
[61] The applicant is not entitled to any relief.

ELRC Commissioner : P. Jairajh
DATED : 04 September 2017