In the matter between: PSA obo GABANAKGOSI, M (Union / Applicant) And DEPARTMENT OF WATER & SANITATION, NORTH WEST PROVINCE (Respondent)

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Laureen Francis
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1 ARBITRATION AWARD Panellist/s: Annelie Bevan Case No.: PSCB /16 Date of Award: 1 June 2016 In the matter between: PSA obo GABANAKGOSI, M (Union / Applicant) And DEPARTMENT OF WATER & SANITATION, NORTH WEST PROVINCE (Respondent) Union/Applicant s representative: Union/Applicant s address: Z Graaff of the PSA No 19 Molopo Road Mahikeng 2745 Telephone: Telefax: Respondent s representative: M Cindi (Labour Relations Official of Respondent) Respondent s address: Telephone: Telefax:

2 DETAILS OF HEARING AND REPRESENTATION 1. The arbitration into the abovementioned interpretation and application of collective agreement; Resolution 7 of 2000 was set down to be heard at 13h00 on 3 May 2016 at the offices of the Respondent, in Mahikeng. 2. The Applicant was present and represented by Z Graaff of the PSA and the Respondent were represented by M Cindi, a Labour Relations Official of the Office of the Premier. 3. The proceedings were electronically recorded. 4. At the sitting the parties agreed that the matter can be decided on papers. The Applicant to present his papers on 9 May 2016, the Respondent to present answering papers on 16 May 2016 and the Applicant to reply thereto on 20 May ISSUE TO BE DECIDED 5. I am required to determine whether or not the Respondent correctly interpreted and applied clause of Resolution 7 of 2000, when it on 2 October 2015 refused to grant the Applicant temporary incapacity leave for the period October 2014, October 2014 and January 2015de progress the Applicant. BACKGROUND TO THE MATTER 6. The Applicant referred the dispute to the Council on 18 December The matter remained unresolved at conciliation and a certificate of non-resolution was issued, where after it was set down for arbitration on 3 May The Applicant handed in a bundle of documents, marked bundle A. SUBMISSIONS OF THE PARTIES 8. The Applicant argued that she is employed at the Respondent as a Deputy Director - Finance. 9. She applied for temporary incapacity leave for three periods, namely October 2014, October 2014 and January The Respondent declined all of the above applications for temporary incapacity leave on 2 October The Applicant submitted all applications for temporary incapacity leave, together with the required medical certificates to the Respondent on time. She has also given permission to the Health Risk

3 Manager to access her medical records, yet despite all of this her applications were declined. She was also not requested to provide additional medical information by the Respondent. 12. Par of Resolution 7 of 2000 determines as follows: (a) An employee whose normal sick leave credits in a cycle have been exhausted and who, according to the relevant practitioner, requires to be absent from work due to disability which is not permanent, may be granted sick leave on full pay provided that: i) her or his supervisor is informed that the employee is ill; and ii) a relevant registered medical and/or dental practitioner has duly certified such a condition in advance as temporary disability except where conditions do not allow. (b) The employer shall, during 30 working days, investigate the extent of the 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 in the Labour Relations Act of (c) The employer shall specify the level of approval in respect of applications for disability leave. 13. In terms of this paragraph 7.5.1(b) the Respondent had to investigate the extent of inability to perform normal duties within 30 working days. 14. This Resolution should be read together with The Determination and Directive on Leave of Absence in the Public Service. Paragraph of this document states that The Head of department must within 30 working days after receipt of both the application form and medical certificate referred to in paragraph , approve or refuse the temporary incapacity leave granted conditionally. 15. The Applicant argued that the provisions of both documents (the Resolution and the Determination and Directive on Leave of Absence) are peremptory and not conditional. The Respondent thus has a duty to finalise the application for temporary incapacity leave within the 30 working days period. 16. It is evident from the evidence presented that the Respondent did not comply with the 30 working day period. 17. The Respondent argued that all applications for temporary incapacity leave is being considered by a panel of medical doctors appointed by the Respondent for that purpose, called SOMA. 18. The Respondent admitted that due to the number of applications it is not possible to comply with the 30 working day period. The Applicant is however not prejudiced during this period, as the Applicant is still employed and enjoys all the benefits of employment. 19. Incapacity leave is not a right or a basic condition of employment. It is subject to the fact that all your normal sick leave must have been utilized and applications for temporary incapacity leave are stringently assessed. 20. The onus of proof in respect of the justification of incapacity leave rests entirely with the employee concerned, who is required to submit detailed objective medical evidence in respect of the necessity for the absence.

4 21. The Applicant still has the opportunity and is herewith advised to do so, to re-submit her applications for temporary incapacity leave to SOMA if she is not satisfied with the initial determination. 22. If the re-assessment through SOMA is unsuccessful, she will have to utilize her annual vacation leave days for those days. ANALYSIS OF THE SUBMISSIONS 23. I intend to offer brief reasons in my analysis as per Section 138 (7) of the LRA as amended, which provides that, Within 14 days of the conclusion of the arbitration proceedings the commissioner must issue an arbitration award with brief reasons. 24. This dispute revolves around the interpretation of paragraph of Resolution 7 of I have to determine whether the Applicant is mero moto entitled to temporary incapacity leave, if the Respondent did not respond to the application within the time frames prescribed by the Resolution. 25. In terms of Resolution 7 of 2000 and the Determination and Directive on Leave of Absence in the Public Service temporary incapacity leave works as follows (PSA obo HC Gouvea v PSCBC & Others (Case no: D751/09) a reportable case in the Labour Court, Durban, delivered 26 February 2013) a. An employee is ill and has exhausted all her nominal sick leave; b. She applies for Temporary Incapacity Leave; c. In order to do this, she reports to her supervisor, and secondly, she gets a letter from her doctor stating that she is temporarily disabled; d. Her application is assessed by someone delegated by the Health Risk Manager, and if successful, she is then placed on Temporary Incapacity Leave for 29 days; e. During a 30 days leave whilst she is on Temporary Incapacity Leave, the employer must carry out the investigation referred to in Clause 10.1 of the Code i.e. must see if her workplace conditions can be changed or adapted etc. f. Thereafter, the employer may, within its discretion, decide to extend Temporary Incapacity Leave while efforts are being made to adapt or change the person s working conditions, or the employer may place the person on vacation leave, or unpaid leave, or it may even terminate the employee s services as a result of incapacity (as per clause 10 and 11 of the Code of Good Practice); g. If the disability continues, then the employer must take steps in terms of section of the Resolution, to medically board the employee. 26. In the same case PSA obo HC Gouvea v PSCBC & Others it was held that Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or

5 provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax, the context in which the provision appears, the apparent purpose to which it is directed and the material known to those who are responsible for its production. Where more than one meaning is possible, each possibility must be weighed in the light of all these factors. The process is objective and not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation. In a contractual context, it is to make a contract for the parties other than the one that they in fact made. (My emphasis) 27. The factual issues in this matter are not in dispute. It is also not disputed that the Applicant complied with the requirements envisaged in clause (a) (i) and (ii). It shall therefore be presumed, that she met those requirements. It is also not disputed that the Respondent only provided the Applicant with a response to her applications for temporary incapacity leave more than eight months after the last application was made. 28. It is evident that both paragraph 7.5.1(b) of the Resolution and paragraph of the Determination and Directive on Leave of Absence are peremptory and places a duty on the Respondent to finalise the application for temporary incapacity leave within the 30 working days period. The Respondent in only providing the Applicant with a response eight months after the applications for temporary incapacity leave has interpreted and applied the Resolution incorrectly. 29. The Applicant is further arguing that the Applicant s applications for temporary incapacity leave, which were not dealt with promptly by the Respondent as is required in terms of paragraph of the Resolution should be approved, due to the failure of the Respondent to keep within the timeframes prescribed. 30. According to my reading of the Resolution and the Determination and Directive on Leave of Absence In the Public Sector, both these documents are silent on the consequences should the employer (Respondent) not keep to the prescribed timeframes as set out in these documents. It would therefore seem reasonable to assume that it was the intention of the parties to the collective agreement, that there would be no consequences should the Respondent not investigate the extent of an employee s inability to perform normal official duties, the degree of inability and the cause thereof or when the Head of Department failed to approve or refuse temporary incapacity leave granted conditionally within 30 working days after receipt of both the application form and medical certificate. 31. If I would accept the argument of the Applicant that a correct interpretation and application of the Resolution means that due to the failure of the Respondent to keep to the prescribed timeframes, her

6 application for temporary incapacity leave must be mero moto approved, then I will no longer be interpreting the Resolution, but cross the divide to drafting of legislation. 32. Section 30 of the Public Service Act, No 103 of 1994 has a deemed clause, where it deals with the application for approval to do other remunerative work outside the public sector. It determines that the Member of the Executive Council has 30 days to determine the application and subsection 30(3)(b) determines specifically that If the executive authority fails to make a decision within the 30 day period, it will be deemed that such permission was given. The intention of the legislator herein is clear. The employee cannot be prohibited from doing remunerative work outside the public sector, if the executive authority does not respond to the application within 30 days. 33. Neither Resolution 7 of 2000, paragraph 7.5.1, nor the Determination and Directive on Leave of Absence in the Public Sector, has such a deemed clause that makes provision for an automatic approval of an application for temporary incapacity leave, should the Respondent not investigate/respond within 30 working days as prescribed. 34. It seems that the only relief available to the Applicant is to re-submit her applications for temporary incapacity leave with a detailed medical report to SOMA for a re-assessment as proposed by the Respondent. This might well be a good option for the Applicant to follow as the reasons provided for refusing the application for short temporary incapacity leave for the period January 2015 seems perplexing. It there is a concern relating to the number of days utilized for temporary incapacity leave, surely the Respondent has other avenues to investigate and the decision to approve or refuse this type of leave must be based solely on the basis as to whether or not the employee is too ill to work. This was however not the dispute that I was requested to consider. AWARD 35. The Respondent has incorrectly interpreted and applied paragraph 7.5.1(b) of Resolution 7 of 2000 by not approving or refusing the Applicant s applications for temporary incapacity leave within 30 workings days of receipt of the respective applications and supporting medical certificates. 36. No relief can be awarded to the Applicant as the Resolution does not make provision for any relief where the Respondent does not comply with the timeframes as set out in paragraph 7.5.1(b) of Resolution 7 of 2000.

IN THE PUBLIC SERVICE CO-ORDINATING BARGAINING COUNCIL HELD AT THE TEACHERS CENTRE, OVERPORT IN DURBAN. DEPARTMENT of EDUCATION - KZN

IN THE PUBLIC SERVICE CO-ORDINATING BARGAINING COUNCIL HELD AT THE TEACHERS CENTRE, OVERPORT IN DURBAN CASE NO: PSCB 396-15/16 PSA obo N JODAPERSAD APPLICANT and DEPARTMENT of EDUCATION - KZN RESPONDENT